RE: [Videolib] Re: Copyright and captioning

Bergman, Barbara J (barbara.bergman@mnsu.edu)
Thu, 6 Sep 2007 13:44:26 -0500

In similar discussions with our disability services director, she has stressed "reasonable accomodation." i.e. that we will try to help out our students who have an impairment, but there is also the expectation that they work with us by informing us of needs. Since it is not possible/desirable to limit films to those with captioning nor is it possible/affordable to add captioning to all of our film titles, the student needs to let Disabilities Services know-- in advance -- that there is a need. DS will then work to either get a pre-captioned video, add captioning, provide a transcript, or if all else fails provide a sign language interpreter. (Transcript or interpreter obviously problematic if viewing in darkened room, while trying to watch the images as well. Ideally the student shouldn't be asked to have to watch the film separate from the class).

(Since the copyright act is primarily from 1976, I'm not surprised that film wasn't mentioned as an example. But I still hold that somewhere it has been said that the principle that we are allowed to created an altered copy for purposes of accomodation holds regardless of format.)

Barb Bergman | Media Services Librarian | Minnesota State University, Mankato | (507) 389-5945 | barbara.bergman@mnsu.edu

-----Original Message-----
From: owner-videolib@lists.berkeley.edu [mailto:owner-videolib@lists.berkeley.edu] On Behalf Of John Vallier
Sent: Thursday, September 06, 2007 12:13 PM
To: videolib@lists.berkeley.edu
Subject: [Videolib] Re: Copyright and captioning

> So whose permission do we need to get to make the captioned copy?

This is an interesting question. 17 U.S.C. 107, Section 121 of the
U.S. Copyright Act (http://www.copyright.gov/
title17/92chap1.html#121) allows an "authorized entity" (a nonprofit
or governmental agency with a "primary mission to provide specialized
services related to training, education or adaptive reading or
information access needs of blind or other persons with
disabilities") to make copies or "phonorecords" from original works
in "specialized formats" (such as braille, audio, or digital text)
that are only for use by the blind or other persons with disabilities
without prior authorization from the original copyright owner.
HOWEVER, Section 121 does not include all nonprofits or governmental
agencies in its definition of an "authorized entity"; it only
includes those with a "primary mission" of providing specialized
services to the blind or disabled. Section 121 also doesn't include
captioning in its definition of "specialized formats" - and the
definition of "phonorecords" in section 101 specifically excludes
"audiovisual works" such as motion pictures or video. So, section 121
exemptions may not clearly apply to university or college libraries/
archives or to closed-captioning, and such activities would require
the permission of the copyright holder UNLESS they fit within the
"Fair Use" provisions of the copyright law. (17 U.S.C. 107.). Fair
Use is, once again, our friend.

On a related note, I recently spoke to an ADA representative about
whether that act required a university to provide closed-captioning
of AV material to patrons with disabilities. They referred me to
http://www.ada.gov/taman2.htm, and specifically http://www.ada.gov/
taman2.htm#II-7.1100 - which states: "When an auxiliary aid or
service is required, the public entity must provide an opportunity
for individuals with disabilities to request the auxiliary aids and
services of their choice and must give primary consideration to the
choice expressed by the individual. 'Primary consideration' means
that the public entity must honor the choice, unless it can
demonstrate that another equally effective means of communication is
available, or that use of the means chosen would result in a
fundamental alteration in the service, program, or activity or in
undue financial and administrative burdens. It is important to
consult with the individual to determine the most appropriate
auxiliary aid or service, because the individual with a disability is
most familiar with his or her disability and is in the best position
to determine what type of aid or service will be effective. Some
individuals who were deaf at birth or who lost their hearing before
acquiring language, for example, use sign language as their primary
form of communication and may be uncomfortable or not proficient with
written English, making use of a notepad an ineffective means of
communication."

Therefore, it's my understanding that if an auxiliary aid or service
is required (e.g. closed-captioning), our University is required to
give "primary consideration" to this request. Then we have the right
to demonstrate that another "equally effective means of communication
is available" (e.g. interpreter, transcript) or demonstrate that use
of the means chosen "would result in a fundamental alteration in the
service, program, or activity or in undue financial and
administrative burdens."

This is all new to me, so I would be interested in hearing more from
the List on these issues.

Thanks,

John Vallier
Head, Distributed Media Services
University of Washington Libraries
http://www.lib.washington.edu/media/

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