This document constitutes an intervention in the proceeding entitled “Application for Exemption Under Section 55 of the Disability Discrimination Act.”
The source documents are:
Permanent location of this intervention:
The present application:
I, Joe Clark, the sole author of this intervention, have been involved in the field of accessibility for more than 20 years, starting with a fateful encounter with The Captioned ABC News in the 1970s. In my career as a journalist and author, I have written over a dozen articles on captioning, audio description, and Web accessibility, the latter being the topic of my book Building Accessible Websites (New Riders, 2003). In a September 2001 profile, the Atlantic Monthly called me “the king of closed captions.”
I have done and continue to do paid consulting work with public- and private-sector clients on accessibility of multimedia and in the field of Web accessibility. I have written audio-description scripts for first-run cinema. I maintain a large Web presence on media access at joeclark.org/access/.
With academic partners, I have formed the Open & Closed Project, a first-ever research and standardization project in multimedia accessibility. I am director of the Project, which is unaffiliated with this submission.
I intervened in a 1999 procedure concerning captioning in Australia. I see few of the lessons of that intervention have been learned.
Responses to claims made in the Application and Proposal are as follows.
Because of the detailed process of consultation which has already occurred, this Application has been made in a very brief form. The Applicants understand that is the preference of the Commission. If, however, more detail is required about the Application, the Applicants will do their best to provide it.
I object to the abbreviated comment period provided for this complex application. The process essentially states outright that we are dealing with a take-it-or-leave-it sweetheart deal reached among certain deaf groups and the relevant broadcasters.
Those parties, and the Commission, ought not to assume that the “solution” they have crafted is based on sound accessibility principles or the basic facts of captioning. In truth, the proposed exemption from the provisions of the Disability Discrimination Act essentially trades away accessibility of significant forms of television programming in the name of assisting children, a project whose outcome, based on available evidence, will be uncertain.
No matter how much negotiation has gone into the current proceeding, it isn’t ready for rollout yet. It fails to address the issue of discrimination against deaf and hard-of-hearing Australians in television broadcasting. The proposal, by exempting certain classes of programming, signifies that deaf and hard-of-hearing Australians have no right to understand and enjoy that programming. As such, the proposal, in the guise of remedying a denial of accessibility, actually guarantees further denial of accessibility.
It’s really quite simple: If you’re not captioning all your shows, you’re engaging in discriminatory practices.
Prior to and in 2001, HREOC received a number of complaints from deaf and hearing-impaired groups and individuals under the Disability Discrimination Act. These complaints alleged that the level of captioning being provided by the Applicants amounted to a breach of the DDA as it amounted to discrimination against the deaf and hearing-impaired community. This contention was disputed by the Applicants.
While unjustifiable hardship is a defense against claims of discrimination under §11 of the Disability Discrimination Act, a first principle of accessibility holds that any exclusion on the basis of disability constitutes prima facie discrimination. On those grounds, airing a single uncaptioned program constitutes discrimination.
The Applicants may dispute that they have engaged in prohibited discrimination, but on first analysis, if the Applicants air uncaptioned programming, they have in fact carried out discriminatory practices. No evidence provided in this public consultation asserts that an unjustifiable-hardship defense was pursued by the Applicants, though SBS makes a similar poverty claim. The only rational finding is that uncaptioned programming, which all the Applicants broadcast, constitutes a breach of the DDA.
As a result of this forum, the Applicants commissioned research to determine the attitudes of members of the deaf and hearing-impaired community, their needs in relation to captioning and to obtain feedback on what areas of programming should be given priority.
I call this process into question.
In effect, this process has permitted the Applicants, with the apparent blessing of the Commission, to say “We’ll eventually solve 70% of the problem. You tell us which 30% we won’t have to worry about.”
A backroom deal of this sort, no matter how earnestly negotiated by the participants, reflects ill on the Commission and on the integrity of Australian broadcasters. Moreover, the deal makes the deaf representatives look bad.
This research was carried out by Sherlock Research
and the Commission refused my direct request to publish it, claiming that the added information to be gained from such publication would be minimal. Yet we are told at the outset that “If, however, more detail is required about the Application, the Applicants will do their best to provide it.” The full research and methodology should have been published. The failure of this proceeding to disclose the research is reason in itself why the proposal should be delayed and renegotiated.
the deaf and hearing-impaired community was generally satisfied with the quality of captioning provided. Overwhelmingly, the main priority identified for increased captioning was for children’s programming, especially educational programs and pre-school programs.
This was seen as essential in order to:
- assist children to develop language skills
- provide an opportunity for children to learn
- allow deaf or hearing-impaired parents to participate in learning development
No party to this proceeding has tendered research that shows that captioned children’s programming will achieve the first two goals. The available knowledge of the effectiveness of captioned children’s television is slight. This proceeding merely assumes that deaf kids:
Further, it is assumed that deaf children are the only children, and indeed the only viewers, who are watching captioning.
In the field of children’s captioning, there exist no available recommendations, save for a few very old papers, on how to edit captions for comprehension by children. Nor has there been discussion of using different teletext pages to transmit multiple streams of captions (as, for example, adult-level verbatim and children’s easy-reader captions), as Line 21/22 captioning can do through the use of language or field modes.
The Applicants, the Commission, and deaf groups are perhaps unaware that the Media Access Group at WGBH is presently conducting a field trial of the effectiveness of verbatim vs. edited captions for children. Episodes of Arthur carry adult-level near-verbatim captions on CC1 and children’s easy-reader edited captions on CC2.
Once completed, this study will represent the first credible contemporary evidence on the effectiveness of captioning for children. It stands to reason that adding captions to a program helps in some way, but there is no proof of exactly how.
We have fair reason to suspect that children’s captions will be less effective than captioning for adults:
Accordingly, when we caption children’s programs, it is likely that the groups that understand the captions best are, in order, hearing adults, deaf adults, and hearing children.
Children’s programming must be captioned; all programming must be. (In Australia, one could limit that generalization to “all programming that can be reasonably captioned using the teletext character set.”) This proceeding must not, however, assume that captioning programs for kids will actually benefit deaf kids; no proof has been supplied.
The entire exercise seems like a sympathy ploy. Who could argue against helping children? Well, doing so is easy if you set emotions aside. The current proceeding seeks to caption virtually all children’s programming, whether kids can read and understand captions or not, while guaranteeing that entire swaths of programming for grownups, who definitely can read and understand captions, will go uncaptioned. The proposal barters the known benefits of captioning for adults for the unknown benefits of captioning for kids.
This proceeding should not use kids as a weapon in a battle to limit what gets captioned.
The Proposal was the result of a long and detailed process, demonstrating the commitment of the Applicants to addressing the needs of the deaf and hearing-impaired community.
That process may have been “long and detailed,” but it is fatally flawed because it rests on untrue assumptions. Moreover, the unseemly speed with which the Commission seeks to tie up loose ends leaves the impression that this is a done deal: “Take it or leave it; we’re gonna rubber-stamp it anyway.” The proposal will guarantee inaccessibility, hence discrimination.
I caution interested parties against this approach. Do not be so self-satisfied that you are unable to recognize the real flaws in the proposal. Do not be so exhausted by the “long and detailed process” that you stubbornly refuse to correct the flaws in the current proposal. In short, don’t let egos and expediency get in the way. Take more time to get it right. You’ve waited this long and worked this hard; wait a while further and work a little more.
Summary of Proposal
- Caption all programs (other than sport) which commence in prime-time until their conclusion
I object in the gravest terms to the exclusion of sport, or, indeed, to any genre of programming. An exclusion of sport seems based on a series of unstated falsehoods:
All kinds of sporting events are captioned in Canada, the U.S., and the U.K. Sport is also captioned in Australia already, a fact that by itself proves sport captioning is practicable and necessary.
My Australian colleagues may hold the prejudice that rugby, cricket, and Aussie rules football – sports wildly popular in Australia but less so worldwide – are unique and by their nature preclude captioning. I don’t see how that could be true. Australian rules football isn’t so very different from rugby, soccer, or NFL or CFL football that comparisons cannot be drawn; I have watched broadcasts of those sports with captions and enjoyed the experience. It is perfectly possible. Moreover, the wide range of sporting events captioned in Canada – bobsleigh, gymnastics, wrestling, cycling, and beyond – militate against any argument that specific sports are uncaptionable. If that isn’t sufficient evidence, consider the Olympics, which is captioned wall-to-wall in North America and was recently captioned in Australia, after much doubt that it could be done.
Except for TV programming in languages that cannot be credibly rendered in the teletext character set, there is no form of programming that cannot be captioned.
The absence of captions on sport programs has been at issue in legal proceedings elsewhere, as in Vlug v. Canadian Broadcasting Corporation:
The first example [of uncaptioned programming] cited by Mr. Vlug related to the fifth game of the Division Round of the Major League Baseball playoffs, broadcast by the CBC English-language network on October 8, 1995. This was a game between the Seattle Mariners and the New York Yankees. Mr. Vlug was following the playoffs closely, having watched the first four games of the series, all of which had been captioned. He was looking forward to the game, and was dismayed to discover that it was not captioned. Mr. Vlug described his anger and frustration, explaining that it was like reading a novel, only to find the last chapter missing.
On March 30 and 31, 1996, the CBC English-language network broadcast the finals of the World Curling Championships, which broadcast was not captioned or otherwise made accessible to deaf and hard-of-hearing viewers. According to Mr. Vlug, all of the games leading up to the finals had been broadcast on TSN, complete with captioning of the commentary. Mr. Vlug testified that he himself is a curler, and that curling is very popular in the deaf community. Some four years later, he still feels the anger caused by the CBC’s failure to caption this program.... He also complains that CBC frequently fails to caption hockey games, and states that when games are captioned, much of the play-by-play is left out.
The legal provisions against discrimination are functionally identical in the Canadian Human Rights Act and the Disability Discrimination Act. Parties involved in the current proceeding open themselves to future legal action from parties uninvolved in the proceeding who feel they have been discriminated against through the refusal to caption sport programming. Certain deaf groups may be signatories to the proposal, but other deaf groups or individuals may bring a complaint concerning inaccessibility of sport programming. And they’ll have a ready legal precedent.
This proceeding smugly and blithely dismisses sport programming in its haste to push through a fait accompli deal. The proposal communicates that children’s programming is important but sport programming is not; there is no acknowledgement that all programming is important. The categorical exemption of a certain programming genre constitutes discrimination against persons with hearing impairments under the DDA. Quite apart from that, the implied rationale is nonsense.
- Staged increase in hours to reach minimum goals – 55% by end 2005 and 70% by end 2007 (6:00 A.M. to midnight programming)
Any result other than 100% captioning of applicable programs (again, programs in languages renderable in teletext) constitutes discrimination. After some two decades of captioning, it is absurd and insulting that broadcasters should even suggest attaining anything less than full captioning – and their efforts to put off even a 70% captioning level for four full years are deplorable.
- Priority is given to captioning of pre-school and children’s programming – by end 2007, over 1,400 hours of pre-school, children’s and schools’ programs will be captioned each year.
I advise this proceeding to ignore stated hours of captioning in this citation and elsewhere. A figure of “over 1,400 hours” looks impressive but boils down to a mere 59 days of captioning – two months out of twelve, in other words. The figure looks less convincing in that light.
Broadcasters must be held to a percentage approach to captioned programming, where, for programming that can be rendered in teletext, the only legally permissible percentage is one hundred.
The Proposal allows for increases to be phased in over time. The Applicants see this as essential due to:
- the limited availability of captioners
- the desire to maintain high-quality captioning services, necessitating highly-trained, experienced captioners
I am not surprised to see this old canard recapitulated in the present proceeding. A falsehood, if repeated often enough, begins to gain a patina of truth.
I am sure this rationale divides itself into two parts:
In the latter case, hire more captioners. Problem solved. These captioners cannot become “experienced” if they aren’t hired and on the job in the first place. Perhaps it’s time to begin meaningful private-sector competition in the captioning field in Australia.
In the former case, is there evidence that the number of real-time captioners in Australia has not been kept artificially low in order to manufacture a crisis? Canada has a population of 31 million and many dozens of television stations and networks requiring real-time captioning, yet we manage to find enough qualified real-time reporters. Australia, with a population of 19.8 million and many fewer stations and networks, surely must be able to cope.
If it cannot, Australia can simply use overseas captioners. I do not refer to hiring overseas staff and moving them to Australia; I mean using remote captioners offshore. I am sure this plan will be greeted with the derision I have come to expect from Australia when practices already in use elsewhere are pointed out, but the plan will work.
Real-time captioning is usually done remotely in North America. Sometimes the captioner watches the video signal by satellite or cable television, sometimes not.
It may come as a surprise to Australians, but the minimum you need to caption a live program is an audio feed and a phone line.
Gary Robson, Inside Captioning (CyberDawg Publishing, 1997), pp. 166–167:
Bill [Senske, of Denver station KCNC] began to question the conventional wisdom that a captioner has to be able to see what she’s doing.... The reasoning behind that requirement holds that captioners have to be able to see what their captions might be covering, that it’s easier to follow what’s happening when you can see it. Bill believed that this reasoning was erroneous.... In 1994, NCI re-entered the local market directly. They began with WWOR, an independent station in New York. Their captioning process is similar to the one employed by Caption Colorado. In the event that the captioner is not in the station’s viewing area, the captioning is done using an audio hookup....
To reduce the problem of covering graphics, NCI secures tapes of each station’s newscasts, which are analyzed to see when graphics are traditionally displayed. As the captioners grow used to the station, they can avoid placing captions where the graphics usually appear.
Tammie [Shedd] regularly reviews videotapes of local news broadcasts to monitor her stenocaptioners. This is an important quality-control process, especially when the captioners are scattered around the country.
Moreover, CaptionMax in the U.S. provides real-time captioning in Spanish for the U.S. network Telemundo (as, for example, on the nightly news show Noticiero Telemundo). One of the captioners involved does the work from Chile, listening to audio via telephone (for reduced delay) and watching on DirecTV satellite.
Transnational, even transoceanic captioning is perfectly possible. It’s happening now. No doubt there is enough captioning capacity in North America and England to pick up the slack for homegrown Aussie captioners.
- the significantly increased financial commitment for each Applicant, resulting from the increases, due to the cost of captioning, e.g., 16 hours of labour are required to caption a one-hour prerecorded program
You’ve got some pretty inefficient captioners there. Even given ingestion and encoding times (let’s assume both are 1:1, which they are not), and even given a full 60-minute runtime per program hour (on commercial networks, that is not the case), Australian captioners appear to spend two business days captioning a one-hour program when Americans can do it in one day.
In any event, leadtimes are a misnomer. Some programming is in the can and ready for broadcast days, weeks, or months in advance; the hours spent captioning such programming do not matter as long as the airdate is reached. Captioners can take their time with such programming.
It’s programming delivered closer to airdate that’s the problem, and if Australian captioners aren’t already using efficiency techniques to caption such programming, they need to start. Among other things, a single program can be broken into segments, all of which are captioned simultaneously, or separate transcriptionists can transcribe the program (dedicated staff are often faster than multifunction staff), or captioners can simply work after hours, or caption houses can hire more staff.
The claimed number of work hours to caption a program is, first of all, unproven, and more importantly, irrelevant. Efficiencies are possible, and all that matters is getting the show captioned for airdate. Don’t bandy about numbers as if they tell the whole story.
Broadcasters to support actions of Working Party seeking Government action to:
- require captioning decoders in all new television equipment; and
- improve availability of VHS and DVD players which allow recording of closed-captioned television programs. [Emphasis added.]
I fully support the proposal to include decoders in all new television equipment, if the requirement:
The proposal to “improve availability of VHS and DVD players which allow recording of closed-captioned television programs” must be addressed with technical facts.
Percentages include program repeats.
In other words, broadcasters get a credit for rerunning a show. The requirement should be modified as follows: “When a previously-captioned program is repeated, the broadcaster must caption additional previously-uncaptioned programming of the same runtime.”
Even this requirement improperly permits the attainment of a level of captioning below 100%, but let’s at least be honest here: Broadcasters do not deserve a credit for rerunning a show with captioning. Broadcasters should add to the stock of captioned programming.
- Programs do not include advertising, sponsorship or promotional material, or community service announcements.
Such an exemption is untenable. The entire broadcasting system must be made accessible. “Advertising, sponsorship or promotional material, or community service announcements” must all be captioned. Impossible? No, it isn’t: CBC in Canada is already doing it.
As part of a settlement to a human-rights complaint that was reached in 2002, CBC and CBC Newsworld (an all-news network) now caption every second of the broadcast day, save for outside commercials, over which CBC claims not to have legal authority. Vlug v. Canadian Broadcasting Corporation:
Counsel for the CBC argues that I must consider the minimal additional benefit that would be derived by Mr. Vlug if the entire broadcast schedules for the CBC English language network and Newsworld were captioned, given the hours that he usually watches television.... I should also note that the reference to the minimal additional benefit to be derived by Mr. Vlug, in my view, trivializes the essential nature of Mr. Vlug’s complaint. Firstly, I do not accept that the additional benefit to be derived by Mr. Vlug is minimal.... Even access to television commercials cannot, in my view, be characterized as trivial: whether we like it or not, advertising has a significant place in the fabric of popular culture. Further, one must not confuse an argument as to the potential triviality of the service with the importance of the right in issue, in this case, Mr. Vlug’s right to be free from discrimination on the basis of disability.
Since 1 November 2002, in-house promos, announcements, news flashes, and all programming on CBC Television and Newsworld have been captioned. (At least, such is the requirement. There is evidence that CBC is in noncompliance.) The only exempted items are outside commercials.
That settlement effectively raises the floor for all broadcasters worldwide that are governed by antidiscrimination legislation with terms similar to the Canadian Human Rights Act’s terms. It would be a denial of natural justice to exclude “advertising, sponsorship or promotional material, or community service announcements” from the present proceeding. Perhaps a weak case could be made that outside commercials could be excluded.
- Captioned programs include foreign-language subtitled programs.
- Hours of programs broadcast exclude foreign-language programs exempted by section 38(4B) of the BSA.
That section reads:
(4B) Standards... must not require the provision of a captioning service for:
- a television program, or a part of a television program, that is wholly in a language other than English; or
- a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognizable as being in the English language; or
- so much of the audio component of a television program as consists of incidental or background music.
(4C) For the purposes of paragraphs (4B)(a) and (b), disregard minor and infrequent uses of the English language.
It appears that §(4B)(a) absolutely forbids the captioning of languages other than English. Yet the Television Broadcasting Services (Digital Conversion) Act 1998 Draft Captioning Standards (available in an inconvenient file format) states:
8.2 Foreign Language Speech
8.2.1 Representing speech
Dialogue in a foreign language (as opposed to a foreign word or phrase embedded in normal English speech) should be captioned in exactly the same way as English – verbatim if possible.
Ask a fluent speaker of the language to do the captioning or verify your work. Colour, position and time as usual. Don’t enclose the dialogue in quote marks.
If it isn’t possible to caption the actual words, identify the language as closely as possible and indicate speech with (Speaks x). Use a normal character colour and position under the speaker.
- (Speaks Swahili)
- (Speaks Aboriginal language)
If the meaning or tone of the speech is clear, indicate this in the caption. In dialogue, try to give some idea of the flow of conversation.
- (Barks order in Chinese)
- (Speaks angrily)
- (Asks question in Slavic language)
These guidelines provide notable detail for a service that, on surface reading of the legislation, is illegal.
In any event, it is unjust to exclude subtitled programs from a requirement to caption. Subtitles are not captions.
- Captions are intended for deaf and hard-of-hearing audiences. The assumed audience for subtitling is hearing people who do not understand the language of dialogue.
- Captions move to denote who is speaking; subtitles are almost always set at bottom centre.
- Captions can explicitly state the speaker’s name.
- Captions notate sound effects and other dramatically significant audio. Subtitles assume you can hear the phone ringing, the footsteps outside the door, or a thunderclap.
- Subtitles are usually open. Captions are usually closed.
- Captions are usually in the same language as the audio. Subtitles are usually a translation.
- Subtitles also translate onscreen type in another language, e.g., a sign tacked to a door, a computer display, a newspaper headline, or opening credits.
- Subtitles never mention the source language. A film with dialogue in multiple languages will feature continuous subtitles that never indicate that the source language has changed.
- Captions tend to render the language of dialogue, transliterate the dialogue, or state the language.
- Captions ideally render all utterances. Subtitles do not bother to duplicate some verbal forms, e.g., proper names uttered in isolation (“Jacques!”), words repeated (“Help! Help! Help!”), song lyrics, phrases or utterances in the target language, or phrases the worldly hearing audience is expected to know (“Danke schön”).
- Captions render tone and manner of voice where necessary.
- A subtitled program can be captioned (subtitles first, captions later). Captioned programs aren’t subtitled after captioning.
One notes that the only book currently in print on subtitling – Jan Ivarsson and Mary Carroll, Subtitling (Trans-Edit, 1998) – verifies the distinction between captioned and subtitled productions (p. 129):
[O]pen subtitles intended for the hard-of-hearing... differ from translated subtitles mainly in that they include additional information and adhere to slightly different norms for reading speed and syntax....
The book goes on to list three special requirements of captions – inclusion of non-speech information, speaker identification, and language register.
Only those who cannot tell captions and subtitles apart would dare to claim that subtitling is sufficient for captioning. Or rather, those who seek to minimize the essential differences between captioning and subtitling dare to make that claim. To declare that subtitled programs don’t need to be captioned betrays a cavalier ignorance of accessibility, and bespeaks a cheapskate desire to avoid captioning as many program types as possible, a theme we have encountered already in this proceeding.
If the contention that subtitled shows don’t need to be captioned had ever been true, captioning would have evolved to look and act exactly like subtitling; deaf and hard-of-hearing viewers would be perfectly well-served by subtitling, despite the fact that subtitles are a heavily-edited translation, don’t tell you who’s speaking, leave out all non-speech information, and refuse to render many audible words.
In the previous proceeding, hysterical and alarmist broadcasters couldn’t imagine how a subtitled program would be captioned. Wouldn’t the screen be packed edge to edge with visible words? No, obviously not. Captions would add non-speech information, identify speakers, and render dialogue not otherwise rendered.
Should anyone in Australia be terrified at the prospect of adding more words to the screen (and really, it does seem as though opponents of full captioning are obsessed to the point of mania with avoiding the addition of onscreen text), bear in mind that the Vlug decision requires CBC to caption its subtitled films. The CBC is not doing so consistently, but it happens, and the results are perfectly watchable.
The proposed provision also fails to recognize that many programs are multilingual and include well more than “minor and infrequent uses of the English language.” Examples in the feature-film world include Monsoon Wedding, Birthday Girl, No Man’s Land, The Sum of All Fears, and pretty much any Star Trek or Star Wars picture involving Klingons or other aliens. The proposals fail to account for multilingual productions.
The proposed settlement is not ready for prime time. I don’t care how long you’ve all worked on it or how satisfied you are with its provisions: If implemented, it would guarantee inaccessibility.
I have attempted to counter the falsehoods and inaccuracies of the proposal. Had anyone contacted me during the gestation of the proposal, I could have done the same thing up front, with the possible result that the proposal would be solid and ready for implementation. But that is not the case.
The Commission, the Applicants, and the implicated deaf groups now have a stark choice:
I implore the interested parties to take the time to get the deal right.
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Intervention in ‘Application for Exemption Under Section 55 of the Disability Discrimination Act’