It should be so simple. If people who are blind or visually impaired want to enjoy video content — television programs, major motion pictures, popular online multimedia, educational materials, and on and on, they should certainly be able to do so on terms of genuine equality. And if their access to such content depends on, or can be enhanced through, the description of the on-screen visual elements via voice-over narration, such description should be provided. And if the creator of the original content does not provide description or provides insufficient description, others should be allowed to provide it. And if other people with disabilities can benefit from the described content, they too should be allowed to enjoy it.
The provision of description has been hindered by technical issues, cost considerations and insufficient legal requirements. Surprisingly, the enjoyment of described video content is also made more complicated by copyright law, a vast and dynamic corpus of legal reasoning embodied in highly technical congressional enactment, rich and extensive jurisprudence, and jargon-laden international agreements. Indeed, copyright has been called the metaphysics of the law, see Folsom v. Marsh, 9 F. Cas. 344 (D. Mass. 1841) and the questions that one must wrestle with in copyright law have been likened to attempts to explain the distinction of soul from body.
1. Chafee Amendment
One result of the complexities introduced by copyright law is that absent a specific provision in the law permitting creation of audio described content, one has to wrestle with questions about whether and under what conditions such descriptions may be permitted under fair use and other principles of copyright law. The law already permits certain authorized entities to reproduce nondramatic literary works in specialized formats for people who are blind or visually impaired or who otherwise have so-called print disabilities without first needing to obtain permission from copyright owners. 17 U.S.C § 121. This provision was incorporated into the law by an amendment called the Chafee amendment. The purpose of the amendment was to facilitate third party production of accessible format copies of literary works without the delays and uncertainty of securing copyright permissions. However, there is no specific comparable provision in copyright law limiting the exclusive rights of copyright owners with respect to description of §audiovisual works. Nevertheless, use of copyrighted audiovisual works involving their modification or supplementation to make them more accessible to people with disabilities may be protected as a fair use.
This is certainly true for nondramatic literary works that might be reproduced outside the boundaries of the Chafee amendment. This means that, even though an entity may not fall within the definition of authorized entity within the meaning of section 121, or a particular specialized format produced is not within its scope, or the specialized materials produced are distributed to persons outside §121's qualifying beneficiary class, the reproduction of copyrighted nondramatic literary works without permission may nevertheless be a fair use. Indeed, people who are blind or visually impaired, and certainly those who are similarly situated, namely people with disabilities which prevent them, as does the disability of vision loss, from reading standard materials, are explicitly understood to be among the intended beneficiaries of the fair use doctrine. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455, n.40, (1984). In fact, the constitutional objective of copyright law, "to promote the progress of science and the useful arts," U.S. CONST. art. I, § 8, cl. 8, is clearly furthered by the reproduction and distribution of works benefiting those who, but for such reproduction and distribution, would be shut out of the full and equal enjoyment of the knowledge and creativity conveyed in such works. Moreover on the international stage, these principles are embodied in the recent treaty adopted by the World Intellectual Property Organization and intended to promote greater access to literary works by people with disabilities all over the world. See Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, VIP/DC/8/REV, July 31, 2013, http://www.wipo.int/edocs/mdocs/copyright/en/vip_dc/vip_dc_8_rev.pdf.
2. What is Third Party Description?
Any analysis of copyright law and its impact on third party content description is impossible without first understanding some of the mechanisms used for third party description. Description can be done live, with a narrator reading a prepared script or adlibbing description, as an audiovisual work is played. With respect to audiovisual works, such as motion pictures or online videos, description can either be embedded in the work itself or it can exist outside of the work and be sequenced and even audibly mixed with it. Thanks to computer technology, it is possible not to embed the description track or each of its component parts in the original work; a stand-alone track, or a series of short burst description tracks, can be run simultaneously with the original work and independently sequenced and mixed with the original work so that the user experiences the original work as though description is embedded in it. We will discuss these methods further in the section below.
This paper is intended to explore the question of whether copyrighted audiovisual works may be described by third parties for the benefit of people with disabilities, and we examine both the limitations and opportunities that current law represents. We first analyze the circumstances in which third-party described content (TDC) may either be an independent work of authorship or an infringing derivative work. We then turn to an extended discussion of the extent to which the fair use defense may be available to creators of TDC. Finally, we examine whether and how the Congress might enact Chafee-like allowances for TDC and how such legislative amendment might fit in the overall context of the use of copyright law to further information accessibility for people with disabilities.
3. Objectives of This Paper
It is perhaps useful at this point to say a few words about what this paper is not. It is not intended to be an exhaustive survey of all legal authorities that may have a bearing on the lawfulness of TDC. It is not a manifesto championing the absolute right of creators of TDC to use copyrighted motion pictures and other audiovisual works without restriction. It is not legal advice either to copyright owners or to TDC creators. Rather, by walking through some of the primary legal and practical considerations inherent to various means for providing TDC, we hope to demonstrate that the complexity and vagueness of current law with respect to TDC means that further congressional refinement is needed to give the creators of TDC the confidence required to make described video content as widely available as possible.
Why is this paper, and TDC itself, needed? Quite simply, producers of multimedia, from major motion pictures to television to K-12 educational materials to the vast content of consumer-generated audiovisual works available through online social networks and other sources, are not providing adequate access to their works by including descriptions that would make them fully usable by audiences with vision loss. While it is true that more and more film studios and major movie theater chains are making description more widely available today than in the past for the most popular box office productions, even this positive development has only occurred through relentless informal prodding and through formal advocacy. The same holds true for the increasing amount of described television programming. The federal requirement on the top major national broadcast and cable networks to each provide approximately four hours per week of primetime or children's described programming that has been in force since July 1, 2012, was itself the subject of fierce opposition by the motion picture and broadcast industries who successfully went to federal court more than a decade ago to overturn this same requirement when the Federal Communications Commission first tried to impose it. Only after advocates for people who are blind or visually impaired successfully took their case for description directly to Congress did the question of the FCC's clear authority to impose such a modest requirement get resolved. In America's public schools, where children with disabilities are expected to be mainstreamed, students are using an ever deepening ocean of technologies and multimedia materials in the classroom that are not properly adapted for students who are blind or visually impaired. The same is true in post-secondary education. While many of us might question the value of much of the video content posted to sites such as YouTube, there is no doubt that such consumer-generated content has become, and can only be expected to increasingly assert its place as, an integral part of our social and cultural life. Unless we act now to ensure that needless barriers to the full enjoyment of all of this content are removed, people with vision loss will remain shut out of these means for education and community participation.
Ultimately, however, what we need to be thinking about is not just how to get copyright law out of the way of third parties who are asked to facilitate accessibility to online videos or other audiovisual works on an ad hoc basis. Rather than trying to deal with accessibility as an afterthought, how can we improve America's copyright law so that it rewards the efforts of owners to ensure accessibility from the start? And how can we support the efforts of third parties that take up the work of accessibility when owners do not? The general answer we provide, after an extensive analysis of the circumstances in which unauthorized third party description of audiovisual works may be currently lawful, is to recommend comprehensive revision to the Chafee Amendment. The policy objective to be achieved is straight forward. Copyright law should never be designed to allow owners, either by intention or inaction, to in any way bar or burden the full and equal access by people with disabilities to knowledge and information of all kinds. While we believe that third parties who describe copyrighted audiovisual material without permission are nevertheless protected by current law, this opinion cannot possibly substitute for the confidence that third parties must have in the lawfulness of their conduct to make described video content as widely available as it should be. There is, however, not necessarily anything special about audiovisual works in comparison to any other tangible media of expression. Whether we are considering a printed book, a photograph, an audio recording of a lecture, a movie, sheet music, or anything else that may be copyrighted, if it is not accessible by design, others should be able to make it so, without hesitation and with honor.