We would like to thank Blake Reid of the University of Colorado Law School for the following review of Reading Sounds: Closed-Captioned Media and Popular Culture by Sean Zdenek.

I’m delighted to join my colleagues at Authors Alliance with this contribution to their ongoing series on Authorship and Accessibility, an outgrowth of a collaboration between Authors Alliance, Silicon Flatirons (where I’m a faculty director), and the Berkeley Center for Law & Technology, which held a roundtable on the topic with technologists, authors, academics, lawyers, and disability advocates in Berkeley last year, summed up in this report co-authored by my students in the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic.

By random chance, my first advocacy project as a lawyer was working for Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) and a coalition of deaf and hard of hearing consumer groups and accessibility researchers on closed captions for online video as a part of the Federal Communications Commission’s implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). Ever since, I’ve been fortunate enough to spend a lot of my life as a clinical fellow and law professor working on the law and policy side of the wonderful world of closed captioning.

Consumer groups and advocates have long been concerned about the quality of the captions that convey the aural components of video programming to viewers who are deaf or hard of hearing with video programming. While inaccurate and incomplete captions are often the butt of jokes, they aren’t so funny for people who are deaf or hard of hearing and rely on captions to understand the aural component of a video. For example, a single wrong letter on news captions might mean the difference between a story about a war in Iraq and a war in Iran.

That’s why consumer groups have fought hard for caption quality. Those efforts culminated in the FCC’s 2014 adoption of wide-ranging caption quality standards for television, which require captions to be accurate, synchronous, complete, and properly placed on the screen.

The FCC’s rules aim primarily at establishing a baseline of compliance to ensure that captions deliver a transcription of a program’s soundtracks that is as close to verbatim as possible given the unique attributes of sound and text. There are lots of good reasons that advocates have focused on verbatim captions over the years; in addition to incomplete and incorrect captions, there is a lengthy and complicated history of simplifying and censoring the content of captions, which most recently entered the public eye in the context of Netflix’s censorship of captions on the rebooted Queer Eye for the Straight Guy. Verbatim is a principle that corresponds neatly to the goal of equal access: the captions should give viewers who are deaf or hard of hearing as near an equal experience in watching video programming as their hearing counterparts listening to the soundtrack.

However, advocates have also long urged their counterparts in the video industry to take captions seriously not just as a matter of accessibility, but as a matter of creativity. If filmmakers obsess over every aspect of a movie’s cinematography and sound design, why not the captions? In a production that spends millions of dollars to get all the details right, captions that are front and center for a film’s deaf and hard of hearing audience shouldn’t be an afterthought—they should be a core part of the creative process.

Sean Zdenek’s 2015 book Reading Sounds is one of the first efforts to rigorously explore the creative dimensions of captioning. Zdenek, a technical communication and rhetoric professor, endeavors to explore captioning as “a potent source of meaning in rhetorical analysis” and not simply a legal, technical, or transcription issue.

Zdenek’s exploration is an essential encyclopedia of scenarios, showing how captioning leaves creative choice, nuance, and subtlety to captioners and filmmakers. While captioning spoken dialogue seems on first blush to pose a relatively straightforward dialogue, Zdenek identifies nine (!) categories of non-speech information that are part of soundtracks, including:

• Who is speaking;
• In what language they are speaking;
• How they are speaking, such as whispering or shouting;
• Sound effects made by non-speakers;
• Paralanguage—non-speech sounds made by speakers, such as grunts and laughs;
• Music, including metadata about songs being played, lyrics, and descriptions of music; and
• Medium of communications, such as voices being communicated over an on- or off-screen television or public address system.

Tricky scenarios abound. What if one speaker is aurally distinct from another, but his or her identity is unknown? (Imagine Darth Vader being identified as “Luke’s Father” in the early going of The Empire Strikes Back.) How should a captioner describe the unique buzzing sound made by Futurama’s Hypnotoad? How should the captioner describe an uncommon dialect that may not be familiar to a hearing viewer, or which may have been invented by the filmmaker? What are the lyrics to “Louie, Louie,” exactly?

Zdenek expands into a variety of other problematic scenarios such as undercaptioning (the omission of non-speech sounds), overcaptioning (making prominent the exact content of ancillary speech happening in the background that a hearing viewer may be unable to parse precisely), and transcending the context of a scene to convey information that the viewer shouldn’t know. Delayed captions are all too familiar to deaf and hard of hearing viewers, but Zdenek explores the subtle relationship between caption timing, punctuation, the spoilage of time-sensitive elements afforded by the ability to read ahead of the dialogue, such as reading the aural punchline to a visual setup, and the inadvertent creation of irony by captions that linger on the screen for too long. Zdenek even highlights the need to caption silence in dynamic contexts, such as a phone ceasing to ring or a person mouthing inaudible dialogue—scenarios that call to mind the controversial “silent” scene in The Last Jedi, which many hearing theater-goers were sure was a glitch but was an intentional choice by director Rian Johnson.

Zdenek also explores the role of captions in situating video in broader cultural contexts. For example, should a captioner identify a narrator who is a well-known actor with whom the audience will likely be familiar but who is uncredited in the film? How should music, such as the iconic NBC chimes, be described in text? And how can captioners be trained to capture cultural significance—especially if a captioner is a computer program converting text to speech automatically?

Zdenek does not offer complete solutions to all these questions and scenarios. But he extrapolates in unsparing detail (much of it presented in audiovisual context on the book’s companion website) how they arise and what considerations captioners and filmmakers might take into mind in thinking not just about how to comply with captioning law, but how to author captions.

In doing so, he has also created a compelling reference for lawmakers and policy advocates to develop a richer, more nuanced understanding of the role that captions can play in advancing the civil rights of Americans who are deaf or hard of hearing to access video programming on equal terms. Zdenek is identifying dimensions of captioning that the next generation of video accessibility policy needs to consider and address.

Blake E. Reid studies, teaches, and practices in the intersection of law, policy, and technology. He is an Associate Clinical Professor at Colorado Law, where he serves as the Director of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) and as the Faculty Director of the Tech Policy Initiative at the Silicon Flatirons Center.

photo by Pexels | CC0

Today, Authors Alliance joins a group of organizations, including the Digital Public Library of America, Internet Archive, and UC Berkeley Library, to endorse the Position Statement on Controlled Digital Lending by Libraries. The statement offers a good-faith interpretation of copyright law for libraries considering digitizing works in their collections and circulating the digitized title in place of a physical one. Today’s release of the statement is accompanied by an in-depth white paper by David Hansen and Kyle K. Courtney analyzing the legal arguments for CDL.

For centuries, libraries have provided free access to books to their patrons. Ownership of books gives libraries the right to lend their copies and make them available on bookshelves without seeking copyright owner permissions. In the digital age, libraries have an interest in continuing this time-honored tradition by scanning physical copies of books in their collections and making digital copies available for lending on the same types of terms as they have done with conventional books.

Controlled Digital Lending (“CDL”) is an example of how new technologies can be harnessed to help authors share their creations with readers, promote the ongoing progress of knowledge, and advance the public good. Many authors face technical, legal, and financial barriers that prevent them from sharing their works more widely. When easily accessible online version of their books are not available, their books are effectively locked away, creating a chasm in the public availability of important works.

Under the CDL’s digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons (the hard copy is not available for lending while the digital copy is checked out, and vice versa). A library can only circulate the same number of copies that it owned before digitization. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods. System design choices and collection decisions, like selecting books that are orphaned (works for which the copyright owner cannot be identified or located), books that are out of print, or books that are non-fiction or primarily factual enhance the fair use arguments that underpin CDL. As Hansen and Courtney explain, CDL is “not meant to be a competitor to Overdrive, nor a replacement for licensing e-books of best-sellers or other currently licensable e-book content,” but CDL is particularly helpful to “address access to the large number of books published in the ’20^th Century black hole’ that have little hope of otherwise bring made available to readers online.”

For these reasons, CDL is particularly beneficial for authors whose works are out of print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. In fact, some Authors Alliance members have taken the extra step to regain the copyrights to their books from their publishers and make them openly available online, including through HathiTrust, Google Books, and Internet Archive’s Open Library, without one-person-at-a-time lending restrictions. Others have negotiated with their publishers to make open copies of their works available from the moment of publication. These authors are often motivated by their desire to reach readers and promote the dissemination of knowledge and culture beyond the commercial life of their books, or to reach readers whose access to these works is otherwise limited.

Sidonie Smith, Professor of English and Women’s Studies at University of Michigan, regained rights to her 1987 book A Poetics of Women’s Autobiography: Marginality and the Fictions of Self-Representation several years ago. Smith now makes the book available to the public under an open access license, allowing her to reach readers and scholars around the world. According to Smith, this decision means that her book can “live more vibrantly in the public and academic spheres. Through that access I can share ideas more directly with emerging scholars in my fields of autobiography studies and feminist studies of women’s literature; support students and faculty around the globe in their engagement with life writing capaciously defined; and contribute in a small way to the project of educational justice that makes scholarly resources available across differently situated institutions of higher education.”

Robert Darnton, Professor at Harvard University, also opened up access to the first two books he published and made them freely available online after he successfully reverted rights. At the time, he described how distributing works in this way allows authors to “ensure[] that your work’s continuing impact and relevance are not limited by its commercial life.”

While reverting rights, terminating transfers, or negotiating for open terms may be an option for some authors to fully open up access to their works online, the fact remains that millions of books—especially those that have fallen out of print—are, for all intents and purposes, unavailable. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.

For all of these reasons, and those outlined in the Position Statement on Controlled Digital Lending by Libraries, Authors Alliance endorses CDL as a beneficial tool for readers and authors alike.