Is there copyright in subtitles?

This week somebody brought a Swedish case to my attention which has been rumbling on for three years; that of the Undertexter.se site. Police raided the site in 2013 and seized the servers, and in May the operator was prosecuted. He is facing, potentially, a prison sentence. This case reminded me of that of a Norwegian student who was fined in 2012 for running a subtitle site. Again the prosecutors had demanded a prison sentence.

I was struck by this as these sites, as well as being popular for translation/language purposes, are also used by deaf and hard of hearing folk. I have never used them myself but I know first-hand how frustrating it is to look forward to watching something, only to insert the DVD and find that it’s inaccessible…

Whilst both cases make much of the translation aspect, due to region locking and licensing issues (it is probable that the subtitles were made from or being used in conjunction with illicit content),  I was interested two things. Firstly: is there copyright in subtitles, and secondly: would use of these sites be infringing under the new disability exception in UK copyright law (section 31 CDPA 1988)?

Does creating a subtitle track to a film constitute copyright infringement? Yes, it’s likely to do so as film scripts are protected. Transcribing the dialogue of a film will probably result in copying a substantial part of a film script.

However, an alternative interpretation would be that subtitling uses independent skill and effort to come up with a new original work – which in itself might attract copyright protection…

Can subtitle files be used under the new  exception in UK copyright law? The exception has been widened now to include all material formats protected by copyright, including films (previously only literary, dramatic, musical and artistic works were included) and now all disabilities that prevent access to a work are included, not just visual impairment. So if the subtitles are created or used to help a person with a disability to access that work then this is likely to be covered under the exception.

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As ever, all views are my own, but thanks to Teresa Hackett for alerting me to the Undertexter case, and Charles Oppenheim for mulling it over with me.

 

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