November 17, 2017

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Copyright and the DVD Dilemma

To upload, or not to upload: that is the question

Illustration by Tom Bloom

Is it legal to copy a DVD onto my school district’s server? As general counsel for a company that publishes and distributes educational videos and sells video-on-demand servers that digitally deliver them to the classroom, I get that question from educators all the time. And the answer is: it depends.

If you’re dealing with copyrighted works, things can get complicated, but let’s start with what you as a media specialist can legally do. It’s fine to copy a DVD (or for that matter, a VHS tape) onto your server if your district or school has produced and owns the content, including the underlying elements like text, music, illustrations, photographs, and video footage that appear in the recording. You’ll also want to make sure the content doesn’t violate an individual’s right to privacy or publicity or defame them or their organization in any way.

It’s also permissible to use content that’s in the public domain, or works for which no copyright holder can be found (commonly referred to as “orphaned works”). Care should be exercised in the case of suspected orphaned works to ensure that what you intend to use truly has no copyright holder. It’s also legal to upload a copy of a DVD to a network that consists of 100 percent student-created content (don’t forget to get parental permission). And, of course, it’s clear sailing if your district has obtained a license from the appropriate copyright holder that specifically permits your school district to copy the DVD onto its server.

But what if a DVD doesn’t fit conveniently into any of these categories? That’s where the fair-use doctrine may come in handy. Fair use, an affirmative defense to copyright infringement covered under Section 107 of the U.S. Copyright Act of 1976, permits educators to use copyrighted materials in certain ways and under specified conditions. To determine if your intended use is permitted under the fair-use doctrine, it’s necessary to weigh the following four factors:

The purpose and character of the use. Is the use commercial or for a nonprofit educational purpose? Is the use “transformative”? In other words, is the copyrighted work being used to produce insight or understanding, which is expressed in the form of a newly created work? Or is it simply a reproduction of the same work as it was originally produced? A nonprofit educational use would weigh in favor of a fair use. However, if the work is merely being copied, it’s more likely that the use is not fair. Case in point: the use of copyrighted works in students’ homework mashups is more likely to be considered a fair use because the use of the work in this fashion is often transformative.

The nature of the work. Is the original content informational or factual? If so, this factor is likely to balance in favor of fair use. If the original content is creative, such as in a fictional popular movie produced purely for entertainment, then this factor is likely to weigh against fair use. However, some courts have determined that if a work is produced specifically for the classroom as opposed to a work created for the general public, then the use of such work in a classroom is less likely to be a fair use because it would compete with a copyright holder’s ability to recoup its investment.

The amount of the work being used. How much of the work is being used in relation to the entire work? Is a significant portion of the heart or essence of the work being used? If that’s the case, odds are it’s not a fair use.

The effect of the use on the potential market. Does the use have a negative impact on the potential market for the original work? If so, this factor would balance against a fair use. Courts have determined that a use that acts as a substitute for the original work constitutes harm to the market. In addition, if there is or could be a potential impact on the licensing and sale of the copyrighted work in its existing market or in any not-yet-exploited markets, the use would weigh against a fair use.

As you can see, just because a DVD is being used for educational purposes doesn’t mean such use qualifies as fair use under the copyright act. And even though all of the fair-use factors should be considered when doing an analysis, courts haven’t required all four factors to tip in favor of fair use for the defense to be successful. Further complicating things, some courts have given certain fair-use factors more weight than others.

Finally, it’s important to remember that copyright holders have a number of exclusive rights, which include the right to reproduce, distribute, and publicly perform a copyrighted work. Uploading a DVD to a server constitutes a duplication of the copyrighted content, which infringes the copyright holder’s exclusive right to reproduce the work. Furthermore, making a copyrighted DVD available for access to students and teachers through a school’s server could be considered a distribution or a public performance and, therefore, a copyright infringement. Even if software on a network would limit the viewing of the content to one person at a time, the copying of a DVD onto the server would still be an infringement because it violates the exclusive right of the copyright holder to reproduce and distribute the copyrighted work.

If you’d like to learn more about fair-use guidelines, the following resources are highly recommended: “The Educational Fair Use Guidelines: Distance Learning” (www.utsystem.edu/ogc/intellectualproperty/distguid.htm), “Fair Use Guidelines for Educational Multimedia” (www.utsystem.edu/OGC/IntellectualProperty/ccmcguid.htm), and “The Code Best Practices in Fair Use for Media Literacy Education” (www.centerforsocialmedia.org/files/pdf/Media_literacy_txt.pdf).

The copyright act contains two additional provisions that permit the use of copyrighted content in the classroom under certain requirements. The first provision is known as the “classroom exemption” and allows instructors in nonprofit educational institutions to perform or display lawfully purchased copyrighted works during face-to-face classroom teaching. This exemption is limited to the public performance or display of copyrighted works, including when the teacher and students are in the same building. It does not, however, permit the reproduction or distribution of copyrighted works to a video-on-demand server and, therefore, excludes broadcasting or otherwise transmitting content from an outside location into a school, whether on an open- or closed-circuit radio or television. In other words, it’s fine to show a Civil War DVD to an American history class, but you can’t copy the program for distribution over a network to be accessed throughout the school district.

The second provision in the copyright act that permits the use of copyrighted content in the classroom, the Technology, Education, and Copyright Harmonization Act of 2002 (better known as the “TEACH Act”), provides another option for educators who want to copy a DVD onto their servers. Although the TEACH Act expands teachers’ rights to display and perform others’ copyrighted works for distance education, it does not permit the use of all copyrighted works on a school district’s server. That means that media specialists aren’t allowed to copy content onto their servers that’s produced or marketed primarily for instruction via a digital system. This exclusion is specifically intended to protect the targeted market for works created for digital educational instruction and to prevent a chilling effect on the creation of such works. As Kenneth D. Crews, a professor at the Indiana University School of Law in Indianapolis, explains, “If specific materials are available through an online database or marketed in a format that may be delivered for educational purposes through ‘digital’ systems, the TEACH Act generally steers users to those sources, rather than allowing educators to digitize [and] upload their own copies.”

Even if a school district can demonstrate that a DVD was not produced or marketed for instructional use on a digital system, the TEACH Act still limits the amount that can be shown in the classroom. Let’s say, for instance, there’s a districtwide lesson on the Declaration of Independence, and teachers want to provide their classes with a view of Philadelphia’s Independence Hall and the room where the famous document was signed. As long as the district has legally purchased a copy of Nicolas Cage’s 2004 action film National Treasure (which features those historic locales), it’s fine to show three 15-second clips from the movie. That’s because a “reasonable and limited” portion of the copyrighted work is being used and the performance is directly related to a legitimate educational objective. Obviously, it’s not legal to show the entire 130-minute film.

What else do librarians need to know about the TEACH Act? The law prohibits converting analog content if it’s already available digitally or if users are blocked technologically from making additional copies. The act also requires that the district or school be an accredited, nonprofit institution that can only use the content as part of instructional activities limited to a specific number of students enrolled in a specific subject and only to be shown during class or stored for later use in class. The law also mandates that school districts create policies and provide certain technological measures to ensure that the copyrighted work is protected from any unauthorized use while it’s stored on the district’s server. A school must also protect the copyrighted work from being accessed outside the classroom and prevent the unauthorized dissemination of the work by teachers and students. (For a complete list of the TEACH Act’s requirements, visit www.copyright.gov/title17/92chap1.html#110.)

When determining if the TEACH Act applies to the use of the content in your library or classroom, the first question to ask is whether the content’s primary market is the digital educational instruction environment. Since the answer is not always clear, it’s best to ask the creator or supplier of the content. Products created by the company I work for, for example, are marketed primarily for use on our digital delivery system. So our programs can’t be copied to a network without our permission. But if a district copies another publisher’s DVDs onto its server without inquiring about its primary market and the content doesn’t fall under the TEACH Act, then your district could be subjected to unplanned licensing fees.

It is also worth noting that the Digital Millennium Copyright Act of 1998—another part of the copyright law—provides a separate set of legal restrictions that should be reviewed concerning the duplication of encrypted or copy-protected DVDs.

Unfortunately for schools, there are varying interpretations of the copyright law, which makes it difficult to apply. And critics of the fair-use doctrine often say it’s vague and difficult to navigate. That’s why it’s so important for media specialists to stay on top of copyright issues and to take the lead in crafting clear, well-informed policies.


Judith C. Koss (judie@libraryvideo.com) is the vice president of legal and business affairs for Library Video Company, SAFARI Montage, and Schlessinger Media.

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