In 2017-2018, the TLPC, including student attorneys Sophia Galleher and John Schoppert, represented the Association of Transcribers and Speech-to-Text Providers (ATSP) before the U.S. Copyright Office’s Seventh Triennial Section 1201 Proceeding in Washington, DC. in an effort to empower disability services professionals to circumvent technological protections measures (TPMs) to provide accessible captioned and described video to students with disabilities . To do so, the Clinic argued in comments and at the hearing that accessibility purposes were quintessential fair uses and should be the subject of an exemption from liability under Section 1201 of the Digital Millennium Copyright Act.
Important caveat: this post is intended only as general information and does not constitute legal advice. If readers wish to utilize the new exemptions granted by the Librarian, they should consult independent legal counsel before doing so.
In granting the exemption, the Office largely agreed with ATSP’s arguments that adding captions and descriptions to video constitutes a non-infringing fair use under the mainstream provisions of U.S. copyright law. However, the Office recommended, and the Librarian implemented, several conditions for exemption that must be met to avoid liability for circumventing technological protection measures under Section 1201 of the DMCA:
- First, the exemption is limited to captioning or describing a video “where the accessible version is created as a necessary accommodation for a student or students with disabilities under a federal or state disability law, such as the ADA, IDEA, or Section 504.”
- Second, the exemption is limited to “for-profit and nonprofit educational institutions, as well as to K–12 institutions, colleges, and universities.”
- Third, the exemption allows circumvention only after the educational institution has “conducted a reasonable market check and determined that an accessible version is not available, not available at a fair price, or not available in a timely way.”
- Finally, the exemption “requires the accessible versions to be provided to students and stored by the educational institution in a manner that reasonably prevents unauthorized further dissemination of the work.”
While these rules provide a helpful path forward for disability services offices, the rules contain some traps for the unwary that must be navigated to preserve eligibility for the exemption. Accordingly, it is critical for those circumventing TPMs to make video accessible to consult with their institution’s counsel before doing so.
The final exemption language is as follows:
(b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works:
. . .
(i) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, where:
(A) Circumvention is undertaken by a disability services office or other unit of a kindergarten through twelfth-grade educational institution, college, or university engaged in and/or responsible for the provision of accessibility services to students, for the purpose of adding captions and/or audio description to a motion picture to create an accessible version as a necessary accommodation for a student or students with disabilities under an applicable disability law, such as the Americans With Disabilities Act, the Individuals with Disabilities Education Act, or Section 504 of the Rehabilitation Act;
(B) The educational institution unit in paragraph (b)(2)(i)(A) of this section has, after a reasonable effort, determined that an accessible version cannot be obtained at a fair price or in a timely manner; and
(C) The accessible versions are provided to students or educators and stored by the educational institution in a manner intended to reasonably prevent unauthorized further dissemination of a work.
(ii) For purposes of this paragraph (b)(2), ‘‘audio description’’ means an oral narration that provides an accurate rendering of the motion picture.