Disclaimer

This page was not developed by a lawyer, and the information within should not be considered legal advice. End Disclaimer

In the world of accessibility, copyright is a common concern. There are laws that require that content be accessible; however, when the original work isn't accessible, making an accessible version can require copying and transforming the original work. This stretches the limits of what is and isn't copyright infringement. Let's take a look at what needs to be done to keep the balance between accessibility and copyright with respect to captions.

FAIR USE AND CAPTIONING

Below is a video overview of Copyright and Fair Use.

Video: Copyright Basics for Teachers

When it comes to creating captions for copyrighted or third party videos (videos we didn't create), we have to lean on Fair Use. As mentioned in the video, there are four points to consider when making a Fair Use claim.

Purpose and Character of Use
Nature of Copyrighted Work
Amount and Substantiality
Effect Upon the Work's Value

Purpose

In order to claim Fair Use the purpose of creating or showing a captioned version of the video must be appropriate. In general, the video should be used for non-profit and non-commercial uses. This means using that using videos for educational, news reporting, criticism, and/or parody purposes are acceptable so long as the usage reasonably adheres to the remaining three parts of Fair Use.

For general Fair Use, it's also better if the original work is transformed into something completely different, but with captioning, the original work must be maintained. Additionally, if you are the one who will be sharing the video (you're not just the captioner), be sure to cite the original source.

Nature of Original Work

Generally speaking, this point refers to whether or not the original work is a factual source or creative source. When it comes to using a copyrighted video for captioning, this is probably less of a factor. Instead, the privacy setting of the original work is more likely to play a part. When it comes to online videos, there are three privacy settings.

**Table 1: Privacy Settings**
Setting	Qualities of Setting
Public	The video can be accessed by anyone in the world (save for maybe a few countries that have censored such content). Such videos can generally be shared and might be capable of being used in derivative works adhering to Fair Use limitations. Examples: YouTube (default), Vimeo (default), most websites with built-in video players.
Unlisted	This video will not show up in general searches and is only available to persons who have been given a link to the video. It is generally expected that only those who have been given the link will view the video and that the video will not be shared further or copied and transformed. Examples: YouTube (unlisted), Vimeo ("Only people..." settings where you were invited byt the video owner), embedded or linked Ensemble/OneDrive/GoogleDrive videos, Canvas videos (if you are enrolled in the course)
Private	This video is only visible to the creator and (potentially) a few specified persons on a password-protected site. It is generally expected that only the specified persons can view the video and that the video will not be shared or copied. Examples: YouTube (private), Vimeo (Only me, and any of the "Only people..." settings where you were not invited by the video owner), Canvas videos (if you are not enrolled in the course), unshared Ensemble/OneDrive/GoogleDrive videos

Note: The examples of non-public videos in the above table are approximations. The actual privacy may depend on the nature of the host site and/or your relation to the video owner. End Disclaimer.

If the copyrighted video being captioned has an unlisted or private privacy setting, then the captioning (and/or sharing) process needs to respect these settings or your Fair Use claim may be voided.

Amount Used

This point examines the amount of original work copied. The smaller the amount copied is, the stronger your Fair Use claim. Unfortunately for captioning, when copying is necessary, the whole video needs to be copied. Luckily, technological advances have made it easier than ever to create captions for copyrighted videos without having to copy the video. Public YouTube videos can be added to Kaltura libraries and captioned through Kaltura, platforms like Amara.org allow captions to be added to public videos via a plugin/video player, and vendors like Verbit and 3Play Media have similar plugins/video players.

While these technologies exist, some videos still cannot be captioned with these methods. When that is the case, it is recommended that an alternate resource be used. If that is not possible and the video is being used in a course, then it may be appropriate to make a private, captioned copy of the video that should only be provided to students with accommodation letters.

Effect on Value

This point is about making sure the owner of the original video gets the market shares or revenue they have earned. So, for instance, let's say that the video you need to caption is a monetized YouTube video. If you were to make a captioned copy of that video and publish it, the original video's owner could claim that your version takes away from their viewership and thus causes the owner to lose money.

Video Copyright Summary

Use creative common licensed videos that are already captioned, whenever possible.

Otherwise, in order to caption and share copyrighted, third-party videos:

Make sure the video is being used for education, news reporting, criticism, or parody purposes.
Cite the original source.
Respect the original video's privacy settings.
(If it's not public, don't share it without written permission and don't use captioning tools that will make it public.)
Before attempting to caption the video yourself, ask the owner to caption it or see if the owner has (or can) enabled Community Contributions on their YouTube videos.

For more on copyright, see this Public Statement of Library Copyright Specialists as well as Clemson's Copyright Libguide. Also, if you need help making sure that you are not violating copyright by using these materials, reach out the Clemson Library Reserves (reserve-l@clemson.edu) or talk to your subject librarian.