TLPC Advocates for Expansion of Video Accessibility Exemption to Section 1201 of the DMCA

(by Scott Goodstein, Colorado Law 3L)

On April 5, 2021, the TLPC—on behalf of the Association of Transcribers and Speech-to-Text Providers (ATSP), along with ATSP’s past president Jason Kapcala and Jonathan Band of the Library Copyright Alliance (LCA), presented at the Eighth Triennial Section 1201 Rulemaking Hearing in support of the Proposed Class 3 exemption to the anti-circumvention provisions of Section 1201 of the Digital Millennium Copyright Act (DMCA). Section 1201 prohibits users from circumventing technological protective measures (TPMs) that control access to copyrighted works, but allows them to apply for and receive temporary exemptions for a variety of noninfringing uses. The petition for the Proposed Class 3 exemption was filed on behalf of ATSP and in partnership with the Association on Higher Education and Disability (AHEAD) and the LCA.

The Office had already indicated its intent to recommend renewal of the exemption, which allows for disability services offices and similar organizations to provide captioning and/or audio descriptions for motion pictures at educational institutions for students with disabilities. The proposed modifications to the Class 3 exemption, based on the past three years of experience of university disability services offices, were as follows:

  • Remediation for faculty and staff—expanding the language of the existing exemption to allow for the remediation of motion pictures for faculty and staff with disabilities;
  • Proactive remediation—clarifying that the exemption allows for the proactive remediation of motion pictures in addition to remediation in response to an accommodation request;
  • Sufficient quality—clarify that the exemption allows remediation of existing works with captions or descriptions of insufficient quality;
  • Commercial availability requirement—clarifying that the exemption applies when a publisher has not included an accessible version of audiovisual materials included with a purchased textbook; and
  • Reuse—clarifying that the reuse of previously remediated works is permissible.

Presenting at the hearing was the culmination of an effort over the Fall 2020 and Spring 2021 semesters by student attorneys Scott A. Goodstein, Dakotah Hamilton, and Rachel Hersch. The renewal petition for the 2018 exemption was submitted in July 2020 by advanced student attorney Mikeala Colvin, while the petition for the newly proposed exemption was submitted in September 2020. The petition to renew the existing exemption, the Proposed Class 3 exemption’s initial petition, the long-form comment of proposed rule-making, and the reply comment are all available for download below.