Specifications

Legal Opinion M 02-22 17 August 2, 2002
concerning how to comply with the legal obligation to caption instructional materials within the
constraints imposed by federal copyright law. Unfortunately, there are no bright-line, definitive
answers to these questions, as the law in this area is complex, and requires looking at the
particular facts of each situation on a case-by-case-basis.
Section 121 of the U.S. Copyright Act (17 U.S.C. §§ 101, et seq.) permits 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 reproduce copies or "phonorecords" from original works in
"specialized formats" (such as braille, audio, or digital text) that are exclusively for use by the
blind or other persons with disabilities without prior authorization from the original copyright
owner. 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. Nor does section 121 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. Therefore, as the section 121 exemptions
do not clearly apply to community colleges or to closed-captioning, such activities would require
the permission of the copyright holder unless, in a particular case, they fit within the "fair use"
provisions of the copyright law. (17 U.S.C. § 107.)
The following general guidelines are intended to provide some direction and clarity for colleges
wishing to purchase new instructional videos or to caption existing libraries of educational
videos. However, a college should not rely solely upon these guidelines, and should seek the
advice of its local district counsel in order to obtain legal advice and analysis specific to the facts
of its individual situation and circumstances, and to avoid liability for copyright infringement.
The state Chancellor's Office is not responsible or legally liable for a college's
implementation of unlawful procedures or failure to obtain appropriate authorization from
a copyright holder prior to video captioning and/or dissemination of accessible materials.
Option 1
Purchase Audiovisual Materials Containing Captioning
Each college should have a listing of videotape material. Typically, this information is stored in
a central repository, most likely in the library and learning resource center. The production date
of the material is a good place to start in determining whether or not captioning is already
included in the format of the media. However, in many cases, publishers and manufacturers of
videotaped material most likely had various formats available for purchase at the time of the
college's order. One format offered may have been closed-captioned. Depending on the need at
the time of purchase, it is possible that most colleges elected not to purchase the closed-
captioned version. Each college will now need to review the format of these videos and
determine whether the material is accessible.
The best possible option when purchasing new instructional video or contemplating the
captioning of existing video is to contact the publisher and determine whether the desired video
normally be apparent to a visually impaired individual. Of course, some videos may not require audio description,
either because the visual elements are not important to an understanding of the material or because they are
adequately conveyed by the existing sound track. This determination will need to be made on a case-by-case basis.
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