The only exception to copyright in regards to accessibility in US Copyright Law is in Section 121 (The Chafee Amendment), which allows for reproduction and distribution of published literary or musical works in accessible formats for use exclusively by print-disabled persons.
This, unfortunately, does not cover other types of accommodations for accessibility, which means that for uses such as copying and reproducing a video to add captioning to accommodate Deaf and hard-of-hearing persons, must rely on Fair Use,
The Fair Use argument for captioning videos for instruction is considered a strong one, particularly as providing captions videos are required by the ADA as well as institutional policies. No one has yet been sued for copyright infringement for adding captions for accessibility which means this has not yet been tested in court. One case we can look to as a potential model is Authors Guide v. Hathi Trust (2014).
In 2008, the HathiTrust Digital Library (HTDL) was founded by the Committee on Institutional Cooperation and the University of California system. It contained the digitized collections from these university libraries that had been done by Google as part of their Google Book Search project (which was the subject of the Authors Guild, Inc. v. Google, Inc. (2015) case). The goal of HTDL was long-term preservation of the collection as well as allowing students with print-disabilities to access works via screen readers. HTDL was sued for copyright infringement by the Authors Guild claiming it was unauthorized reproduction of their works, while HTDL claimed theirs was a Fair Use.
Fair Use Analysis:
| 1. Purpose and Character of Use | In favor of Fair Use - while the creation of an accessible format of a work may be considered a derivative (vs transformative), court cited Supreme Court precedent in Sony Corp of America case, "Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying." |
| 2. Nature of copyrighted work | Against fair use Fair Use - many of the copied works are of a creative nature |
| 3. Amount Used | In favor of Fair Use - it's reasonable to duplicate full-text in order to provide access to print-disabled individuals - necessary for text-to-speech capabilities |
| 4. Effect on Market | In favor of Fair Use - while it may affect sales of ebooks, ebooks are not a sufficient replacement for accessibility uses and there is currently a very small market for accessible books. |
References: https://www.copyright.gov/fair-use/summaries/authorsguild-hathitrust-2dcir2014.pdf; https://policynotes.arl.org/?p=37
The overall finding by the court was that HTDL's copying for accessibility is a Fair Use.
While this case is specifically in reference to print materials and those with print-disabilities, it is not unreasonable to apply a similar argument to captioning media for accessibility, especially with consideration to the following:
Although captioning copyrighted media for educational and accessibility purposes is likely to be a strong Fair Use argument, it is important to remember that there is no way to confirm it as such, until it is taken to court.
This is not legal advice. RIT Libraries can provide information and research assistance on the topics of copyright and fair use. Questions about legal advice and legal recommendations should be directed to RIT’s Office of Legal Affairs. For RIT's definitive institutional policy regarding copyright, visit the RIT University Copyright Policy.
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