The Business Case For Copyright Limitations And Exceptions
The copyright limitations and exceptions principle, for the purpose of providing accessible media for persons with perceptual disabilities, is supported and adopted at all levels (international world trade agreements, international intellectual properties treaties, United Nations declaration of human rights, Canadian government copyright laws, and Ontario AODA legislation) of societal legal obligations. The international Intelectual Properties internet content sharing treaty allows the provisions of technology copyright measures, which has complecated the provisions agreement for accessible media formats.
The Canadian government has contracted a licensing agreement with nonprofit organizations that ensures copyright limitations and exceptions yields appropriately to the public interest and maintains the interests of rightholders. This Canadian licensing agreement strikes a balance with the legitimate interests of right owners and the needs of the visually impaired and the services of the libraries for the blind. This Canadian licensing provision meets the membership obligations of international treaties That require member organizations to ensure that enforcement procedures, are available under their law, to permit effective actions that avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
However, the Digital Rights Management security content technology mechanisms, to support the rights of international content exchange on digital networks, has presented a challenge for Canadian organizations wanting to provide accessible media content. The strong legal supports for the provision of copyright limitations and exceptions, offers a solid foundation upon which organizations can develop best practice processes and procedures. If copyright permissions, cannot or will not be given, to create accessible media content for persons with perceptual disabilities, then Canadian organizations have the privilege of invoking international treaties and Canadian law. This means that best practice processes and procedures must contain clearly defined legal terms and definitions, with recorded actions and decisions that were followed.
Members of World Intellectual Property Organization (WIPO) support copyright limitations and exceptions
World Intellectual Property Organization (WIPO), the global forum for intellectual property services, policy, information and cooperation has established international copyright standards for blind persons. In July 2009 WIPO held a meeting with the World Blind Union, at the International Conference Centre Geneva (CICG), on the needs of visually impaired persons and the associated IP challenges.
In June 2013 the World Intellectual Property Organization (WIPO), at a Diplomatic Conference held in Morocco, adopted a landmark new treaty that boosts access to books for the benefit of hundreds of millions of people who are blind, visually impaired and print-disabled.
The Marrakesh Treaty facilitates access to published works for persons who are blind, visually impaired, or otherwise print disabled. It addresses the
book famine by requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright rightholders.
Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate the availability of works in accessible format copies for beneficiary persons. The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format.
Marrakesh Treaty Article 4: National Law Limitations and Exceptions Regarding Accessible Format Copies (PDF)
Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.
Marrakesh Treaty Article 7: Obligations Concerning Technological Measures (PDF)
The copyright limitations and exceptions for the visually impaired is enshrined in the United Nations Universal Declaration on Human Rights and
the United Nations Standard Rules on the Equalisation of Opportunity for Disabled People. This exception aims at securing the right of blind or partially sighted people to access information and knowledge. In proclaiming the rights of humankind, the Universal Declaration does not distinguish between people having disabilities, and those that do not. The Declaration is in fact clear in its affirmation that
All human beings are born free and equal in dignity and rights. Therefore, people with disabilities should, by right, contribute to the fullest extent in the development of their countries and societies, and should expect an appropriate response to their needs and well being.
Canada copyright law (Section 32) and Ontario AODA Regulation (191/11 IASR) support limitations and exceptions
As a WIPO member, Canada is a contracting party in the Marrakesh treaty, and commited to adopting national laws that permit the making availability of published works in accessible formats. On June 8, 2015, Bill C-65 introduction and First Reading in the House of Commons occurred. An Act to amend the Copyright Act (access to copyrighted works or other subject-matter for persons with perceptual disabilities). The EIFL published a new practical guide, in August 2018, to the Marrakesh Treaty for persons with print disabilities during the World Library and Information Congress in Kuala Lumpur, Malaysia. The new guide, Getting Started, Implementing the Marrakesh Treaty for persons with print disabilities is a practical guide for librarians is mainly aimed at librarians in countries that have joined the Marrakesh Treaty, and where national implementation is completed or advanced.
Copyright Act of Canada
The Government of Canada Copying Licence contractual agreement with non-profit organizations, effective April 2014 through March 2016, was established to administer the reproduction and communication rights in published works, which are collective societies for the purposes of section 70.1 of the Copyright Act, R.S.C. 1985, c. C-42. The scope of this licence agreement permits Government of Canada Institutions to make and distribute Copies of Published Works in the Repertoire, for the non-profit purposes of conducting business within their mandates and for purposes of the delivery of government programs and services including, but not limited to their professional, research, archival, communication and administrative activities.
- Section 29: Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
- Section 30: The publication in a collection, mainly composed of non-copyright matter, intended for the use of educational institutions, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works in which copyright subsists and not themselves published for the use of educational institutions, does not infringe copyright in those published literary works.
- Section 32: Reproduction in alternate format for Persons with Perceptual Disabilities.
The Ontario Regulation Integrated Accessibility Standards
The Ontario Regulation 191/11 Integrated Accessibility Standards made under the ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT (AODA) 2005, establishes the accessibility standards for each of information and communications, employment and transportation. Every obligated organization shall develop, implement and maintain policies governing how the organization achieves or will achieve accessibility through meeting its requirements referred to in this Regulation. Copyright limitations and exceptions considerations will impact the following sections under the AODA Integrated Accessibility Standards.
- Section 12 Accessible formats and communication supports:
Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities.
- Section 14 Accessible websites and web content:
Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) Level AA.
- Section 15 Educational and training resources and materials:
Requires that every obligated organization that is an educational or training institution shall provide educational or training resources or materials in an accessible format upon request.
- Section 17 Producers of educational or training material:
Obligated organization that is a producer of educational, training or print-based learning resources shall upon request make accessible or conversion ready versions of the textbooks available to the institutions.
- Section 18 Libraries of educational and training institutions:
Libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.
- Section 19 Public libraries:
Obligated library organizations shall provide access to or arrange for the provision of access to accessible materials where they exist.
- Section 26 Accessible formats and communication supports for employees:
Every employer shall consult with the employee to provide or arrange for the provision of accessible formats and communication supports.
- Section 31 Career development and advancement:
An employer that provides career development and advancement to its employees shall take into account the accessibility needs of its employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to its employees with disabilities.
Copyright Law And accessibility Fare Use Law Appear In Conflict With Each Other
The copyright limitations and exceptions for the visually impaired must pass the three-step test as outlined in
The Berne Convention,
the TRIPS Agreement, and
the WIPO Internet Treaties.
The 3 Step 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.
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
- Article 13 Limitations and Exceptions:
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
- Article 41 Enforcement Procedures:
Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
The WIPO Internet Treaties
The WIPO Internet Treaties introduced the protection of technological measures of protection and rights management information through a set of obligations for the countries that adhere to these treaties. These obligations are designed to ensure that rightholders may effectively use technology to protect their rights and to license their works online. However, these technological accessories to the rights, and the operation of the new set of rights acknowledged by the Treaties, have added complexity to the traditional balancing of the interests of rightholders and users. In this regard, copyright must yield appropriately to the public interest, including the needs of the visually impaired and the services of the libraries for the blind, but striking the right balance with the legitimate interests of right owners is not a straightforward process when it comes to digital uses of works. One contemporary example is the use of the
digital rights management technologies (DRMs) offering technical processes to secure content in a digital form and supporting the exchange of rights and content on digital networks.
Copyright law in the context of captioning videos is a gray area that is open to interpretation. The copyright law and the accessibility fare use law appear to be in conflict with each other, and has created uncertainty for libraries and educational institutions. This is particularly a problem for Canadian organizations where there are no legal precedence, but the U.S. provide much needed guidance. While the Americans with Disabilities Act (ADA) does not require brick-and-mortar businesses such as video stores to stock captioned videos, courts have held that the ADA requires movie theater owners to enable the display of captions provided by the movies
copyright holders a requirement bolstered by several out-of-court settlements. The U.S. law additionally requires all governmental entities, educational institutions, and private organizations receiving federal funding to make their programs, activities and videos accessible to people with disabilities under Section 504 of the Rehabilitation Act. The Third Party Captioning and Copyright,
A G3ict Policy White Paper By Blake Reid (March 2014), provides background information on the copyright conflict and possible solutions.
How does the creation of captions, by a third-party, violate the copyright protection of the video program? Creating captions effectively copies the protected dialogue and soundtrack in a video program by transcribing them in a nearly verbatim fashion. Do video captions infringe upon copyright, if done without the owner’s permission? 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 And Descriptive Definition
- Closed captions are delivered with video in a hidden encoded form, and can be decoded and displayed or opened at the viewer’s option.
- Open captions are displayed for all viewers and may even be painted onto the images of a video.
- Subtitles, unlike captions used to display textual transcripts in the same language of the spoken dialogue, generally contain translations of the dialogue to a foreign language.
- Live description allow near real-time video description for broadcast or web content; where a describer will not have time to prepare a script or even preview much of the material before hand.
- Post-production descriptive video provides an opportunity for fewer errors.
The Chalenge For Third-Party Captionists
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. Copyright law does not prohibit copying in every conceivable sense, but does give the owner specific exclusive rights to do and to authorize reproductions and adaptations, such as:
- The right to reproduce the work (reproduction right,)
- To prepare derivative works based on the work (adaptation right),
- To distribute copies of the work (distribution right), and,
- To perform the work publicly (public performance right).
The Chafee Amendment to the Copyright Act
So, unlike braille reproductions, third-party captioners can safely assume as a general rule that a significant proportion of the video programming they handle is subject to active copyright protection.
The Chafee Amendment to the Copyright Act, which refers to the transformation of printed books into Braille, large-print, or other formats designed to facilitate access for people who are blind or visually impaired as reproduction in specialized formats. First party captioning is preferred but often falls short in quality. The creation of captions by the copyright owner would fall within the scope of the owner’s exclusive rights. Third party captioning use various techniques, from the “crowdsourcing” approach that uses volunteers from all over the world to create captions and subtitles for Internet videos, to automatically generated captions for videos using text-to-speech technology. 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, or
- An individual captioner might upload a video to a third-party video delivery service for the purpose of using the service’s captioning functionality.
The Fair Use Doctrine
Perhaps the best hope for resolving the potential tension between copyright and captioning is the fair use doctrine, where the doctrine excludes the fair” use of a copyrighted work from the scope of copyright infringement. However, the use of captions for non-accessibility purposes, such as search engine optimization or advertising, either exclusively or in addition to accessibility purposes, might alter the fair use calculus by more directly implicating a potential market for the underlying video’s copyright holder. Third-party captioners seeking to utilize captions for non-accessibility purposes should be wary of the viability of fair use. The meaning and scope of fair use depends on the particular facts of a given situation. 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 Fair use is determined by a balanced application of four factors, as identified by the
Columbia Copyright Advisory Office.
Fair Use Checklist
- the purpose of the use,
- the nature of the work used,
- the amount and substantiality of the work used, and
- the effect of the use upon the potential market for or value of the work used.
Technological advancements is lowering the cost of captioning, but also allowing the extraction of revenue from captions for non-accessibility purposes. 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.
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. However, contract law may allow copyright holders and third-party captioners to address any uncertainty through negotiation. A third-party captioner with a direct contractual relationship with a video program’s copyright holder is well positioned to address any tension between captioning and copyright through an explicit licensing arrangement. Even where contracts prove impossible, the existence of third-party captioning requirements under accessibility laws suggests that copyright should not serve as an absolute bar to third-party captioning. If that were the case, many would-be third-party captioners would be faced with the choice of violating either copyright law or accessibility law, placing the two laws in direct conflict. Agreements between copyright holders and video distributors should ensure that one of the parties will retain responsibility for creating, synchronizing, and delivering captions for the video; Or permit members of the public to step in and do so after the fact if neither a video’s
copyright holder or its distributor implements captions.
Video programmers might also explicitly provide for the downstream provision of captions by unknown third parties through the use of a
Creative Commons license. For example, YouTube’s Terms of Service require video uploaders to
grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform uploaded videos; a license arguably broad enough to encompass captioning the videos. situations where contracting between captioners and copyright holders is inefficient or impossible, are increasingly troublesome. For example, schools and libraries often utilize copyrighted materials without a contractual relationship with the copyright owner, and in such volume that even locating the relevant copyright owners, much less negotiating contracts with each of them, may be so logistically impracticable that librarians and teachers either decline to use videos altogether or proceed to do so without permission. Friends and family members of people who are deaf or hard of hearing, as well as members of the public, may want to caption videos on an ad hoc basis, despite having no relationship with any copyright owners. The Chafee Amendment to the Copyright Act permits certain authorized entities to reproduce and distribute certain copyrighted literary works, like books, in specialized formats, such as Braille, for use by people who are blind or visually impaired. However, the Chafee Fair Use Amendment does not extend to video programming or closed captions, and its coverage is restricted to specifically defined Authorized Entities. While contract, existing statutory exemptions, and fair use may provide paths forward for third-party captioning, uncertainty about the contours of copyright law may hinder critical
Accessible Media Resources
- Integrated Described Video Creator Series (YouTube)
Produced by Accessible Media Inc. in partnership with the Broadcasting Accessibility Fund, this video series teaches content creators how to make media accessible to blind and partially sighted audiences using Integrated Described Video (IDV). To learn more about Integrated Described Video, visit AMI.ca/IDV.
- Inclusive Media and Design (IMD) Web Media Accessibility For All
– Captioning – Make your web video accessible for anyone who has difficulty hearing the audio;
– Video Description – Fill in the blanks for anyone who cannot see the screen;
– Sign Language – Integrate Sign Language into your videos to make them fully fluent for ASL and LSQ speakers;
– Web Accessibility Audits – Llearn how to make your web site accessible; and
– Training – Learn about AODA compliance, web site accessibility, captioning and video description.
- The Canadian Network for Inclusive Cultural Exchange
is a group of researchers, developers, producers, disability organizations and artists who have worked together to identify ways that online culture is inaccessible and to provide guidance on how to remove these barriers to access. The results of this collaboration include working draft guidelines documents. The goal of CNICE is to ensure that Canadian cultural content on-line and the tools available to participate in creating this content are accessible to everyone in Canada, including people with disabilities.
- The Accessibility Information Toolkit for Libraries (Ontario Council of University Libraries)
Toolkit is offered to the Ontario Council of University Libraries (OCUL) community as a useful resource, explaining the institutional obligations under the Accessibility for Ontarians with Disabilities Act (AODA), providing examples of
best practicesin the context of Ontario University libraries. The material in this toolkit should be considered in the context of each institution and adapted accordingly. Excerpts can be adopted, revised or incorporated into institutional guides, policies or any other supporting documentation.
- Stanford Center for Internet and Society Video On The Fair Use Principle
On April 21, 2011, YouTube invited the public to ask our CIS Fair Use experts questions regarding fair use.
- The Caption It Yourself By Described and Captioned Media Program (DCMP)
works with educational media producers/distributors, captioning vendors, and description vendors by offering information concerning media accessibility issues. Some examples of these resources are captioning and description research, requirements of federal and state laws, history of description and captioning, learning benefits of accessible media, and guidelines for creating description and captioning. You can browse and search DCMP articles written by DCMP staff members, teachers, parents, researchers and others. Browse functions allow you to select a topic and then point and click through descriptions of available items.
- The NLS Factsheet On The Chafee Copyright Law Amendment, 1996
The free national library program of reading materials for visually handicapped adults administered by the National Library Service for the Blind and Physically Handicapped (NLS), Library of Congress, was established by an act of Congress in 1931. The program was expanded in 1952 to include blind children, in 1962 to include music materials, and in 1966 to include individuals with physical impairments that prevent the reading of standard print. The Chafee amendment to chapter 1 of title 17, United States Code, adds section 121, establishing a limitation on the exclusive rights in copyrighted works was signed into law by President Clinton on September 16, 1996. The amendment allows authorized entities to reproduce or distribute copies or phonorecords of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities. See the Association of Research Libraries (ARL) Briefing for more information on Accessibility, the Chafee Amendment, and Fair Use Principle.
- Blind People Won the Right to Break Ebook DRM. In 3 Years, They will Have to Do It Again
WIRED, DAMON BERES, October 27, 2021
Advocates will once again be granted a DMCA exception to make accessible versions of texts. They argue that it’s far past time to make it permanent. On Wednesday, the US Copyright Office recommended that the Librarian of Congress once again grant a three-year exemption to break ebook DRM when needed for accessibility.