A thorny issue: transcripts and intellectual property

The story so far

Forty-two§ days ago, I wibbled about the upcoming Towel Day, in a post that featured a video interview of Richard Dawkins talking about Douglas Adams — and the transcript I’d (laboriously) made of it. Goldie left a comment that set me on a path investigating machine transcription. My first foray was a bit of a flop (firstborns are often throwaways, eh, Bish?), but the second was a success.

But then I hit what seemed to be a roadblock. The tool I’d been using (Sonix) offers transcription directly from YouTube videos. However, when entering the link to a video, it put up a message that said: ‘Please make sure that you have permission from the copyright owner‘‡ — which made me stop and think.

For many years now, I’ve tried to ensure that any imagery that I use on my blog is in the public domain, or that I have permission to use it; I’ve always sought to respect copyright. But it hadn’t occurred to me, until now, that transcription could be infringing copyright.

So, I did a little digging. (Disclaimer: IANAL!)

In many countries, when a person creates an original work that is fixed in a physical medium, they automatically own copyright to the work. As the copyright owner, they have the exclusive right to use the work. Most of the time, only the copyright owner can say whether someone else has permissions to use the work.

YouTube Help on Copyright

YouTube is owned by Alphabet (Google), and based in the US. Sonix is also US-based. I’m in the UK, which has different laws. Though the Internet spans the world, the various regional laws haven’t really gotten up to speed on that reality; legislation always lags behind technology. ‘Fair use‘ (US) and ‘Fair dealing‘ (UK) would seem to me to be inapplicable, mainly because it’s necessary to transcribe the entirety of the work in question.

The accessibility argument: helping disabled people

I’m not just thinking of myself, here; it seems to me that this legal barrier to content accessibility clearly impacts all deaf people, unfairly denying them access to it.

The Digital Media Law Project threw me a few bones:

Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

[…]

A use that transforms the original work in some way is more likely to be a fair use;
A non-profit use is more likely to be considered a fair use than a for-profit use

[…]

Add something new or beneficial (don’t just copy it — improve it!)

Digital Media Law Project

… but they also had a couple of brickbats:

A shorter excerpt is more likely to be a fair use than a long one; and
A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.

Digital Media Law Project

The gov.uk website suggests that ‘helping disabled people’ can constitute an exception to copyright. In the case of transcriptions, making content accessible to those who are deaf would seem to be an obvious contribution to society.

The UK government’s ‘helping disabled people’ exceptions as described by the Intellectual Property Office appear, at first glance, to be appropriate. However, one of the restrictions on when these exceptions can be relied upon is ‘accessible copies cannot be made, communicated, made available, distributed or lent to a person that is not a disabled person under these exceptions‘ — and that alone would prohibit creating a transcription and then publishing it on a blog, as that would make it available to those who aren’t deaf.

Hoping that they’d say something like “this is an issue that we’re aware of and there is [insert name of campaign to change the law here] who you could approach for assistance,” I contacted the Royal National Institute for Deaf People (RNID) and the National Deaf Children’s Society. They came back to me: but all they were able to really do was confirm that the act of transcribing was not itself a problem, the issue was the act of publishing the words.

The RNID does have a page listing various campaigns, though none of them address this particular issue. At the foot of that page, though, there is a link to the ‘APPG’:

The All Party Parliamentary Group on Deafness

I might drop these guys a link to this post and see what they say.

A loophole?

YouTube enables the publisher to forbid embedding of the content in another site. Can it be argued that by publishing a video without choosing that option, the publisher grants implicit licence to copy the work? I consulted YouTube’s advice on the subject, but couldn’t find an answer to that — and, in any case, there’s a clear Disclaimer: The information presented here is not legal advice. We give it for informational purposes. If you need legal advice, you should get in touch with an attorney. Yeah, good luck with that, me.

Seeking permission is a fruitless endeavour

As I read it, the law is pretty clear: I have to gain permission from the copyright holder each and every time I (or indeed you) want to publish a transcript of another’s content. This is fraught with difficulty: it’s almost impossible to determine from whom one needs that permission; and even when one can determine that, there’s rarely a way of making contact to ask the question.

As an example, Michael Stevens (AKA ‘Vsauce‘) recently published a video on YouTube entitled ‘The Future of Reasoning‘. I found it fascinating, and immediately thought of publishing it on my blog — along with a transcription, naturally. But Michael isn’t easy to contact. He offers his Twitter handle (@tweetsauce); I tweeted him, but no response (unsurprising, as he has over 1.2 million Twitter followers). I sent an email to the address he offers ‘for business enquiries’ (with some trepidation, as it felt like an abuse of trust given that my enquiry isn’t a business proposition). So far, no response to that, either.

What’s crystal clear is that the only winners here are the intellectual property lawyers.

Following Alice into the rabbit hole to Wonderland

It seems to me that the only recourse I have is to declare the law an ass that needs to wake up to current technological reality, flout it, and justify my actions (to myself, at least) on the grounds that accessibility needs outweigh the need to respect copyright — especially as my intent is to assist public discourse, and I’m certainly not seeking to profit from my efforts. I can’t believe that anyone would really object; after all, I’m helping to get their words ‘out there’.

And it’s not as though my teeny tiny blog audience (that’s you, by the way, if you’re still reading this) will have any impact, in any event.

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Postscript

§ Actually, it was 39 days ago today; I plead poetic license. Heads up: Towel Day is on Tuesday!

‡ I’ve since tried a transcript from a YouTube video again using Sonix; and, that time, I wasn’t presented with a warning to get the copyright holder’s permission. Strange. I got in touch with Sonix, and they’ve confirmed that although they do make a copy of the video on their system, this is not actually published anywhere — and so, I believe, there’s no copyright issue there. They do offer a link to the copy (and the associated transcript); but if you don’t publish that link, search engine crawlers shouldn’t be able to find it.

Header image adapted from
‘shallow focus photo of man writing on printing paper‘
by Nick Fewings on Unsplash