The Federal Communications Commission is in the process of implementing the Twenty-First Century Communications and Video Accessibility Act. Passed by Congress last year, the CCVA requires the FCC revise its rules to mandate closed captioning on IP television, and the Commission is running a proceeding on how to implement the law. Not surprisingly, copyright questions are coming up fast in discussions between the agency and video providers, especially when it comes to enhancing captions in various ways.

Under the FCC's proposal, video programming distributors and providers "would not be required to improve caption quality," the agency's Notice of Proposed Rulemaking explains. "[R]ather, they would be required to ensure that the quality of captions does not decline when delivered via IP as compared to when shown on television. To the extent that VPDs/VPPs have permission to alter captions on the programming so that they improve the viewing experience, we propose that they be permitted to do so."

But some IP video distributors and their representative trade associations insist that intellectual property restrictions require the FCC to tread gingerly on this requirement. Expressions of caution have been submitted by AT&T and Microsoft. Here is the National Association of Broadcaster's commentary on the matter:

"'[E]ncouraging' captioners to provide high-quality captions (a goal fully supported by NAB and its members) should not be confused with a rule that would impose a quality mandate," the NAB notes. "To the extent the Commission takes any action regarding performance objectives, it should establish a safe harbor by which a covered entity that uses the same or substantially the same captioning used on television will be deemed in compliance."

In various contexts, VPDs would be unable to provide captions better than those available on television "because any alteration to the captions would violate the VPOs copyright to those captions."

The Public Knowledge advocacy group pushes back on this assertion. Public Knowledge argues that copyright should not be seen as an impediment to improving captioning on IP television.

Thanks to the fair use limitations in US copyright law, enhancing captions either in the form of corrections or better graphic quality "would not cause VPPs/VPDs to infringe the copyright in the underlying video programming," according to the group's filing with the FCC. "Indeed, despite the claims of several commentors, VPPs/VPDs would even be able to add captions to programming without violating copyright law."

Lost in transcoding

Captioning on television for the hard-of-hearing has been around since the early 1970s. At first it appeared on select programs in an "open" form—everyone could see it. In 1977, the FCC reserved a specific line on TV screens for "closed captioning"—text derived from the programming speech that could be turned on or off at the viewer's discretion.

The Communications and Video Accessibility Act applies this requirement broadly to distributors and providers of IP video programming. It also tells the FCC to establish a Video Programming Accessibility Advisory Committee, which submitted the following recommendations on July 12:

that the Commission require IP-delivered captions to be complete, such that "[n]othing must be lost in transcoding when converting captions between conventional broadcast captioning formats and Internet;" that "[f]or Internet-delivered caption content, the positioning information as originally authored shall be made available to the consumer device;" that the accuracy of IP-delivered video programming must be "equal to or greater than the accuracy of captions shown on television;" that the Commission require IP-delivered captions to possess sufficient timing, such that "[a]ll processing through the distribution chain, including transcoding, must provide a timing experience that is equal to or an improvement to the timing of captions provided in the captioning shown on television;" that a user’s Internet-connected media players should support the ability to change character color, opacity, size, font, background color and opacity, character edge attributes, window color, and language.

Don't preempt fair use

None of this is impeded by copyright, Public Knowledge's staff attorney Jodie Griffin argues. Here's a recap of fair use's four factors for whether the limitation is at play.

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Griffin notes that the point of captioning is not to duplicate something in order to resell it, but to make it easier to understand. "When adding or altering captions," she writes, "the purpose and character of the use is somewhat unique in that the captions are ultimately used alongside the original copyrighted work":

Essentially, video captioning is best understood, not as creating a new work or creating new copies of a work, but as enabling audiences to access the original work in a meaningful way. Even if the VPP/VPD distributes video programming commercially—which may not always be the case—the purpose of the captions is to make the video programming accessible and to comply with the statutory obligations of the CVAA, not to distribute the captions themselves for a profit.

In fact, better captioning increases the value of a work, thus improving its market value. "The Commission should not preemptively discourage such activity through its implementation of the CVAA, which is meant to improve access to communications for persons with disabilities," PK advises.

Along the same lines, allowing users to alter captions by changing or enlarging the font should be understood as a non-infringing activity. Such an adjustment isn't a public performance—it's a private interaction between the user and the content.

"If the actual user is the one modifying the presentation of the captions to make them more effective, the fair use factors weigh even more heavily toward a finding of fair use," Griffin adds:

It may be helpful for the Commission to consider user-controlled captioning options not as the creation of a new or altered work, but rather as the process by which a person with a hearing disability experiences an audio-visual work. Improving the content or presentation of captions simply helps the individual view the programming, much like adjusting the volume or brightness on a television set.

PK got in just under the wire on this proceeding. In late October, the FCC extended the reply comment date to November 1, the day the public interest group submitted its commentary.