The Librarian's Copyright Companion/Chapter 8

by James S. Heller, Paul Hellyer, and Benjamin J. Keele

Chapter Eight

Audiovisual Works and
Non-Print Media

According to the Copyright Act, audiovisual works “are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.”^[1] In other words, audiovisual works mix visual images and sound, and include items such as films, TV shows, and DVDs.

Permissible uses of audiovisual works under the Copyright Act, like uses of copyrighted works in other formats, are not always clear. In fact, sometimes it can be pretty muddy. This chapter covers copying and showing of audiovisual works in light of the copyright owner’s public display and public performance rights.

Recording

It has been over a generation since the U.S. Supreme Court decided Sony Corp. of America y. Universal City Studios, Inc.,^[2] or the “Betamax” case. In 1984, the Court held that off-air taping of broadcast television programs in one’s own home for the non-commercial purpose of time-shifting is not infringing. A few points about the Betamax case: First, the decision applies only to programs broadcast on free network television: pay television channels such as cable, premium channels, and pay-per-view programs are not included. Second, it does not address taping outside the home. Third, it focuses on taping for the purpose of time-shifting, or watching a program subsequent to the original broadcast. What all of this means is that you may record free broadcast shows, such as Dancing with the Stars, Modern Family, or The Office for later viewing.

8.1. Guidelines for Off-Air Taping of Copyrighted
Works for Educational Use

• Broadcast programs
• Non-profit educational institutions
• For instruction
• At instructor’s request
• Local transmission
• Use for first ten days only
• Thirty-five more days for evaluation, then destroy
• Institutional controls

127 Cong. Rec. 24048–49 (Oct. 14, 1981)

Digital video recorders (DVR) have given viewers more options for recording and time-shifting television programming from cable operators. Thus far, the copyright owners of television shows have not sued over DVRs that store copies of selected shows on a hard drive in the viewer’s home.^[3] These devices function much like VCRs except they record on hard drives instead of magnetic tape cassettes, and they have generally been treated the same as VCRs.

Entertainment companies did sue a cable operator over “remote storage DVR,” a system in which the hard drives containing the recorded programming are kept at a central location owned by the cable company. The recorded shows were then streamed to viewers on demand. The appellate court determined that since the viewer selected and ordered the recording of a show, if any infringement was committed, it was by the viewer, not the cable company. The cable company was found not be infringing directly, and for whatever reason, the entertainment companies chose not to allege contributory infringement, so remote storage DVR has not yet led to any liability.^[4]

Institutional recording in libraries or schools is a very different story. Take, for example, Encyclopedia Britannica Educational Corp. v. Crooks,^[5] where a federal district court held that extensive and systematic off-air taping of educational programs, even for non-profit educational purposes, was infringing. In this case, a non-profit organization funded by nineteen school districts offered a videotaping service for schools. The Videotape and Instructional Television Service (VITS) had a nine-person staff, and a library holding 4,500 videotaped television programs. VITS was able to produce sixty videotape copies of a single program in a twenty-four-hour period, and they transmitted about 14,000 programs to schools in the 1976–77 academic year. Each school could keep the tapes. Jerry Lee Lewis might have sang that there was a whole lot of tapin’ goin’ on.

Not surprisingly, the court concluded that this “highly organized and systematic practice of making off-the-air videotapes of plaintiffs’ copyrighted works for use in later years and the making of numerous derivative copies of plaintiffs’ copyrighted works does not constitute fair use… .” Even though the defendant was a non-profit educational organization, the court reached the right decision.

This case does not mean that you can never tape programs for educational purposes. You can find some guidance in the Guidelines for Off-Air Recording of Copyrighted Works for Educational Use,^[6] which were developed by representatives of content producers, educators, and librarians. The negotiations were coordinated by the House Judiciary Committee and the Guidelines were published in the Congressional Record. But they were not been enacted by Congress, and are not law.

A few things about the Guidelines. First, they apply to non-profit educational institutions. A school or academic library that helps its parent institution meet its instructional needs certainly qualifies. But a for-profit library, such as one in a corporation or law firm, does not come within the Guidelines, and neither does a city or county public library unless it is part of an educational institution. Second, the Guidelines apply to programs broadcast to the general public without charge, not to pay-TV programs. (Today this would include basic cable, but not premium channels such as HBO.) Third, the purpose of the taping must be instructional, rather than for entertainment or recreational purposes. Fourth, requests to tape programs must be made by the instructor, rather than ordered from above by, say, the school system. Here are the details.

• You may tape a program only once at the request of the same teacher.
• You may play a recorded program for students only in the course of teaching, and again for reinforcement, within the first ten consecutive school days after the taping.
• You may retain a recording for up to forty-five days after it is recorded, after which time it must be erased or destroyed. After the first ten school days, the recordings may be used up to the end of the forty-five day period only for teacher evaluation purposes.
• You may use a taped program in classrooms and other places in the institution devoted to instruction (presumably including the library), and also in homes of students receiving formalized home instruction.
• You may make a limited number of copies of each recording to meet the needs of teachers. These copies are subject to the same rules that govern the original recording.
• You need not use a program in its entirety, but you may not alter it from its original content so as to change its meaning.
• You may not physically or electronically combine or merge a recording to create a teaching anthology or compilation.
• You must include on all copies the copyright notice as it appeared on the broadcast program as it was recorded.
• An educational institution must establish control procedures that enable it to comply with the Guidelines.

The Guidelines provide a safe harbor. Taping within them would certainly be permissible, but some uses outside the Guidelines also may be permitted as a fair use.

Example 1

Madison High School teacher Connie Brooks tapes a program to show to her class. Student Walter Denton saw the program in class, and asks to see it again three weeks after the first showing because he is working on a term paper.

Comment: The Guidelines provide that after the first ten school days the tape may only be used for teacher evaluation purposes. This is pretty silly. If a student wants to watch the tape again, let him. That sure seems like fair use.

Example 2
Walter (the student) is laid up in a hospital for two weeks and asks to see the tape when he returns to school.

Comment: Technically, the Guidelines say no. But they are guidelines, not the law. This also seems like a perfect case of fair use.

Example 3
Miss Brooks tapes a program to show to her class. She holds on to the tape for several weeks, in accordance with the Guidelines. She then tells the principal, Mr. Conklin, how good the tape is, and Mr. Conklin tells the school librarian to add the tape to the library’s collection.

Comment: Just say no. No matter how much you like the teacher or fear the principal, do not add tapes of recorded television programs to the library’s collection. If you want it, buy it.

As noted in Chapter Five, the section 108 library exemption also address copying audiovisual works. But unless it is a news program, copying is limited to the purposes enumerated in subsections (b) and (c).^[7] Under section 108(b), a library may copy an unpublished audiovisual work it owns for the purpose of preservation and security, or for deposit in another library for research purposes. Section 108(c) permits copying to replace a published audiovisual work that has been lost, stolen, or damaged, but only if the library determines that it cannot obtain an unused replacement at a fair price.

What about news programs? Section 108(f)(3) provides that audiovisual news programs may be recorded and lent, subject to the limitations in subsection 108(a): there is no purpose of direct or indirect commercial advantage; the library’s collections are open to the public or available to researchers; and the reproduction includes a notice of copyright. Unlike the Off-Air Recording Guidelines, section 108 rights are not limited to non-profit educational institutions. The legislative history to the 1976 Act sheds a bit more light on taping news programs.

The conference committee is aware that an issue has arisen as to the meaning of the phrase “audiovisual news program” in section 108(f)(3). The conferees believe that, under the provision as adopted in the conference substitute, a library or archives qualifying under section 108(a) would be free … to reproduce, on videotape or any other medium of fixation or reproduction, local, regional, or network newscasts, interviews concerning current news events, and on-the-spot coverage of news events, and to distribute a limited number of reproductions of such programs on a loan basis.^[8]

A word of caution here: Congress referred to straight news, not to documentary, magazine format, nor other public affairs programs. In other words, not 60 Minutes, Meet the Press, or Face the Nation. But always remember that some uses may be permitted as a section 107 fair use.

As you may recall, section 117 lets you make an archival copy of a computer program. This does not mean, however, that a library may make a copy of a video recording or a sound recording because of the possibility that the original may deteriorate or be destroyed. A library that purchases CDs or DVDs for its collection may not make a backup copy “just in case.” If you need two copies, then buy two copies.

The story is a little different for obsolete formats. Remember that under section 108(c) a library may make a copy if the format in which the work is stored is obsolete and the library cannot obtain an unused replacement at a fair price. In other words, if the library purchased a Beta or VHS version of a continuing education program back in 1982 and cannot locate a DVD version today, then it may copy the old tape onto a DVD. After you do this, you should discard your old copy.

Public Performance and Display

8.2. Public Performance

• A place open to the public
• Where a substantial number of persons gather, or
• Available to the public via a transmission
  • Same or separate places
  • Same or different times

Take a deep breath and hold on to the reins; we are off to a Day at the Races. Recall that a copyright owner has several different rights, one of which is the right to perform the copyrighted work publicly. Venues for performing and displaying copyright-protected works have greatly expanded. In addition to cable and satellite television, we now have satellite radio and online media providers like YouTube, Hulu, and Netflix. These new media outlets have made public display and performance rights one of the more volatile parts of copyright law. But before we get to the meat of this discussion, it’s important to know that U.S. copyright law does not protect all performances, only public performances. According to the Copyright Act:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.^[9]

In plain English, a public performance occurs under either of three circumstances: (1) when the place where the work is performed is open to the public; (2) if the performance occurs at a place where a large number of people (exclusive of one’s family and friends) may gather; or (3) if there is a transmission that allows the public to see or hear the work.

The public performance right is designed to prevent large numbers of people from seeing the same copy of a copyright-protected work, whether at one time or over a period of time. Determining when public performances take place is not always easy. Consider, for example, what different state attorneys general wrote during the 1980s as to whether state prisons could show purchased or rented videos to inmates.

In 1982 the Attorney General of California ruled that showing a purchased video that had a “For Home Use Only” notice on it was a public performance, and that showing those films to prisoners without a public performance license would be infringing.^[10] That same year, Utah’s Attorney General wrote that the Utah State Prison could not show videotapes of movies to inmates even if the inmates were limited to groups of twenty or less.^[11] The Alaska Attorney General similarly held that their Department of Health and Social Services could not show rented videos to inmates.^[12] In 1985, however, the Attorney General of Louisiana ruled that their Department of Corrections could show films rented from local stores to groups of between twenty to thirty prisoners, reasoning that those performances were not public.^[13] Then, in 1988, the Louisiana Attorney General reaffirmed the 1985 ruling, but held that showing tapes to audiences of two- to three-hundred inmates would be infringing.^[14]

Performances are public if a substantial number of people have the potential to see or hear a protected work over the course of time, regardless of how many people actually see or hear it at a particular time or place. A few cases illustrate how courts determine when a performance is public.

The first case involved a video store that played tapes rented by their customers in small two- to four-person viewing booths. The U.S. Court of Appeals for the Third Circuit decided that this arrangement was similar to a movie theater with the added feature of privacy, and concluded that such performances were public.^[15] Two years later, the same court, ruling in a case with a slightly different twist, held that a video store could not rent videotapes and allow the renters to play the tapes in small viewing rooms in the store.^[16]

A line was drawn in 1989 when the Ninth Circuit Court of Appeals held that a rented hotel room is not a public place, and that a hotel could rent videotapes to their guests for viewing on equipment in their rooms.^[17] So a guest could receive Room Service at the Hilton and rent the 1938 Marx Brothers film at the same time.

These court decisions illustrate that you should look at the place where the performance occurs as a whole, not just at a particular room or space within a building when determining whether a performance is public. Stores, restaurants, and hotels (though not a particular room, once it is rented) are open to the general public or to a large number of people outside of one’s family and friends. They are public places, and performances that take place in these places are public performances.

Now let’s discuss libraries. You may contend that some libraries—those in private corporations or trade associations, for example—are not open to the public, and that in any case, performances to groups of employees or to board members are not public performances. You are correct. As noted earlier, the legislative history of the Copyright Act states that “[r]outine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering or a ‘substantial number of persons.’”^[18]

What about city or county public libraries, and public or private academic libraries? These certainly are places where a substantial number of persons outside of a normal family circle and its friends gather. According to the Act’s legislative history, Congress considers performances in these venues to be public performances: “[P]erformances in ‘semipublic places’ such as clubs, lodges, factories, summer camps, and schools are ‘public performances’ subject to copyright control.”^[19]

Two questions come to mind. First, does a copyright owner’s public performance right prohibit a public library from showing an audiovisual work to large groups? To this question, we think the answer is yes. Unless otherwise permitted under the Copyright Act (fair use, for example, or under the section 110 exemptions, which are discussed below), a library cannot show audiovisual works to large groups. There is an alternative, of course: a public performance license.

Public performance licenses may be acquired from the copyright owner, or, more likely, from a distributor. Some distributors of educational films offer public performances licenses along with the DVDs. Many content producers also authorize the Motion Picture Licensing Corporation to convey umbrella public performance licenses to for-profit and non-profit organizations. The cost of the license depends on the amount of usage, size of patron base, and number of viewing sites.^[20]

As for the second question, which asks whether a patron may watch a film in the library, most entertainment companies would regard those as public performances. Even though libraries have purchased copies of films, they have not also purchased public performance rights, so those rights need to be obtained separately. For example, the Library Video Company, while acknowledging fair use and the section 110(2) exemption, advises customers that “The best way to fully enjoy the benefits and flexibility of the digital age is to secure a license for all of your digital content needs.”^[21]

A former Attorney General of Ohio shared this view years ago when, in 1987, he wrote that patrons of an Ohio school district public library could not view videotapes in library viewing rooms. The Attorney General reasoned that because the public library was accessible to the public, performances of videotapes on the premises—even in individual viewing rooms—were infringing public performances. He wrote that “it is the public accessibility of the location where the videotape is shown that determines whether the playing of the tape is a public performance of the copyrighted work for the purposes of section 106(4).”^[22] But even if this is true, and if a few people watching a film in a small library viewing room is a public performance, there is a strong case for fair use.^[23]

Libraries do not always need to acquire public performance licenses when they purchase a film for their collections. If the New York Public Library lends Woody Allen a DVD of the 1940 Marx Brothers’ film Go West so he can watch it at home while eating take-out Chinese food, why can’t he watch it in the library’s viewing room? Indeed, watching a library-owned DVD in a small viewing room seems little different from using a library’s microform reader to read microfiche, or a library computer to access digital information; the library is merely providing the equipment that enables patrons to use library materials in the library.

What about allowing small groups to view films in the library? This is a bit more problematic, but if a group consisting of one’s family or friends may watch a rented film at home, they should be able to watch it in a small viewing room in the library. There are limits to how many people can watch a film without it being a public performance, but there is no magic number. We feel very comfortable with the number four, and quite comfortable with eight.

A few words of caution: you can contract away your fair use or other statutory rights, so review carefully any contracts that come with your purchases. And when your library orders a film, you may want to indicate on the purchase order that the film is being purchased by the library for lending and onsite use by library patrons.

Some libraries may be tempted to establish an account with Netflix or a similar service that provides DVDs for rent or streaming access to movies and television programs. The primary issue for libraries in this situation is not copyright, but the terms of service a library must agree to when signing up for the service. No popular service we are aware of offers an institutional account that would authorize sharing the DVDs or streaming access with patrons. So far it appears no library has gotten in serious trouble yet, but violating the terms of service is a good way to get your service terminated.

Some services, such as YouTube or Hulu, stream audiovisual works online for free. For works that are freely available through them, these services have given permission to view them implicitly or expressly in their terms of service. Although this does not necessarily convey public performance rights, you may permit small groups to view online programs via free streaming, as this shouldn’t implicate public performance rights. But playing whole programs or clips to larger groups, like classes, will require permission, relying on TEACH Act exceptions (more on that later), or fair use.

The Bottom Line: A single library patron should be able to watch a library-owned film in a private viewing room in the library. A small group should be able to do the same in a small viewing room under fair use. How many people? Certainly four, but arguably no more than eight. At the end of this chapter are some guidelines for the use of films in libraries. Right now, however, you should know that you need not rely on fair use alone. The Copyright Act also includes a section that specifically permits certain public performances without the need for permission.

8.3. Section 110 Public Performance Exemptions

1. Classroom teaching
2. Education broadcasting
3. Religious services (non-dramatic literary or musical works, or dramatic musical religious works)
4. Charitable purposes (non-dramatic literary or musical works)
5. Small business (radio or television transmission)
6. Agricultural or horticultural fairs (non-dramatic musical works)
7. Promote sale of non-dramatic musical works or equipment
8. Blind or otherwise handicapped persons (non-dramatic literary works)
9. Handicapped persons (dramatic literary works Jess than ten years old)
10. Non-profit veterans or fraternal organizations (non-dramatic literary or musical works)

Section 110 of the Copyright Act sets forth ten situations in which public performances are expressly permitted. The section 110 exemptions include certain classroom performances, some educational instructional broadcasting, and certain performances at religious services, for charitable purposes, in small businesses, at agricultural or horticultural fairs, in music stores, transmissions to handicapped audiences, and fraternal organizations.^[24]

Remember this: there is no automatic exemption for non-profit public performances. There was such an exemption under the 1909 Copyright Act, but that was changed with the 1976 Copyright Act. A performance in a university library or local public library is not necessarily exempt: the performance must meet the criteria of a section 110 exemption to be covered. Also remember that section 110 rights do not attach if an infringing copy is used.

Videos purchased or rented from commercial vendors are legitimate copies, and generally may be used for section 110 performances. This is true even if the video has a “for home use only” label. That label is not itself a contract. A signed form that places limits on library use of a tape or disc is enforceable, though, so watch out for restrictions in any contracts you sign. Furthermore, when your library orders a DVD, you may want to indicate on the purchase order that the DVD is being purchased by the library for lending and onsite use by library patrons. This is not enough to create a license agreement, but it may help protect your statutory rights.

Performances for Educational Purposes (Section 110(1))

8.4. Section 110(1) Performances
and Displays for Teaching

• Any type of work
• Nonprofit educational institution
• Classroom or similar place
• Face-to-face teaching
• Instructors and pupils present
• Non-infringing copy

Most of section 110 is not generally applicable to libraries, but now we will focus on the two section 110 exemptions libraries are likely to use: the section 110(1) face-to-face teaching exemption, and section 110(2), which addresses instructional broadcasting, or what we now call distance education. We begin with section 110(1).

Section 110(1) permits the performance or display of both dramatic and non-dramatic works (including audiovisual works) by instructors or pupils that take place in the course of face-to-face teaching activities of non-profit educational institutions. Sometimes called the “face-to-face teaching exemption,” section 110(1) requires that there be an educational purpose to the performance. Showing a video for recreation or entertainment, such as rewarding a class for good behavior, does not qualify for this exemption. What might take place in a law school offers a good example of the educational/entertainment dichotomy.

Example 1
A student group wants to start a “Thursday Night at the Movies” series. The group will use films that are part of the library collection or rent them from Netflix. The films will be shown free of charge.

Comment: Because the showings are solely for entertainment purposes, the film series is outside the 110(1) exemption.

Example 2
The school offers a “Law in Film” course that is taught by an instructor as part of the regular curriculum.

Comment: This educational use is fine. Section 110(1) permits you to show everything from The Accused to Twelve Angry Men, and even comedies such as My Cousin Vinny, so long as you meet the other requirements of that section.

Example 3
Several professors want to have a “Law and Film” series open to any law student who wishes to attend. On the first Tuesday of each month a law-related film will be shown, and a professor will introduce and lead a discussion of the film.

Comment: This too is permitted under section 110(1) because the purpose is educational, rather than entertainment.

Let’s look a bit more at this exemption. First, what does “face-to-face teaching activities’ mean? According to the legislative history of the Copyright Act, the instructor and students must be in the same general area in the building, but not necessarily in the same room.^[25] And although the teacher and students do not have to be within eyesight, they must simultaneously be in the same general place. Although broadcasts or other transmissions from outside locations into classrooms are not allowed, loudspeakers or projectors may be used within the building.^[26]

As for who may attend section 110(1) performances and where they can take place, the exemption requires that attendance be limited to pupils, a guest lecturer, or the instructor. Performances permitted under section 110(1) may not be open to others, such as students’ friends or the general public. Although performances must take place in a classroom or a similar place devoted to instruction, any room that can function as a classroom, including the library, may be used.

In a perfect world, everyone who is entitled to attend a section 110(1) performance would be able to see and hear it at the time and place it happens, and every performance would take place in a classroom. In other words, every showing would fit literally, and perfectly, within the exemption. But we do not live in a perfect world. What if—

• A student misses the History of Film class where Citizen Kane was shown. The student wants to check out the library-owned DVD and watch it in a library viewing room.
• A student saw the film in class but wants to see it again, this time in a library viewing room, to understand it better.
• The instructor recommends that students see two other films directed by and starring Orson Welles, and a student wants to watch them in a library viewing room.

The American Library Association’s Model Policy,^[27] discussed earlier, considers the reserve room an extension of the classroom for the purpose of photocopying and distributing materials to students. It is equally fair to view a school or university library as an extension of the classroom for purposes of the section 110(1) exemption, thereby permitting an otherwise qualifying use to take place in a library viewing room.

The motion picture industry may not agree, and instead argue that the section 110(1) exemption does not apply because the instructor and pupil are not simultaneously in the same building. We disagree, but even if one supports such a narrow interpretation of the face-to-face teaching exemption, we still have fair use. A student who wants to watch a library-owned video in a library viewing room, in support of a school related project, should be able to do so under section 107. If the student could borrow the video from the library and watch it at home, he or she should be able to watch it in a library viewing room.

Performances in For-Profit Institutions

The face-to-face teaching exemption applies only to non-profit educational institutions. Performances of educational or training videotapes in organizations such as for-profit schools or corporations are not permitted under section 110(1). But as noted earlier, the legislative history indicates that routine business meeting showings are not public performances because they do not involve the gathering of a substantial number of people.^[28] Consequently, under most circumstances educational or training programs may be performed in commercial business settings, without payment of royalties, if the number of people attending the performances—at one time or over a period of time—is not substantial.

Institutional Liability

What should a library employee do when she has reason to believe that a patron plans to show a library-owned DVD to a large audience? If the following conversation takes place, you may wisely decide not to lend the film.

Student: “I’d like to check out Animal House.”

Staff: “Great flick.”

Student: “Yeah. I plan to show it at a frat party during homecoming. We have this huge 72″ screen. We’re going have about 300 people in the house.”

Staff: “I think you need to speak to my supervisor.”

You should be concerned about the library’s possibly being liable as a contributory infringer. The library’s policy manual should encourage compliance with the Copyright Act and provide some guidance for the staff. Here, then, are our guidelines for using audiovisual works in libraries.

Guidelines for the Use of Audiovisual Works in Libraries

• Viewing rooms should be small, with seating for no more than eight persons.
• The equipment on which videos are shown should be of the kind typically used in a private home, generally no larger than a 65″ diagonal screen.
• Do not charge patrons for loans of videos.
• Make available “play-only” equipment; do not supply equipment that can record.
• Library-owned equipment may be used only within the library.
• Do not lend videos or equipment to a person or organization that you have reason to believe will engage in an unauthorized public performance.
• Affix the following notice to videos: “This Material May be Protected by United States Copyright Law. Unauthorized Copyright or Public Performances Are Prohibited.”
• Affix the following notice to equipment: “Warning: The Making of a Copy and Public Distribution, Performances or Displays May Be Subject to the United States Copyright Law (Title 17 United States Code).”
• Large groups (more than eight persons) may not view videos on library premises unless
  • The use meets the criteria of a section 110 exemption; or
  • The library has received permission to publicly perform the work, through a blanket public performance license or a license specific to the work.

Distance Education (Section 110(2))

8.5. Section 110(2)
The TEACH Act

• Mediated instruction
• Accredited non-profit educational institution
• Most categories of works
• Anywhere
• To students or government employees
• Prevent re-transmission and retention
• Institutional policies

As enacted by Congress in 1976, the Copyright Act imposed limits on the types of materials that could be used for distance education, and to whom those materials could be transmitted. This changed with the 2002 enactment of the Technology, Education, and Copyright Harmonization Act, known colloquially as the TEACH Act.^[29] The TEACH Act broadened the section 110(2) instructional broadcasting exemption to permit the transmission of more materials to more people in more places.

Section 110(2) permits performances of non-dramatic literary or musical works, and also reasonable and limited portions of most other types of works. As for displays, the amount of a work is limited to what typically is displayed in the course of a live classroom transmission. Such performances or displays are permitted when:

• the performance or display is made by, at the direction of, or under the supervision of an instructor as an integral part of a class session that is a regular part of systematic mediated instructional activities of a governmental body or accredited nonprofit educational institution.
  Post-secondary schools must be accredited by a regional or national accrediting agency recognized by the Council of Higher Education or the U.S. Department of Education. As for elementary and secondary schools, accreditation refers to those which are recognized by state certification or licensing procedures.
  In the context of digital transmissions, “mediated instructional activities” refers to activities that use the work as an integral part of the class experience that are controlled by or under the supervision of the instructor, and which are analogous to the type of performance or display that takes place in a live classroom. In other words, if you would not use the work in face-to-face teaching, do not transmit it digitally. Furthermore, you cannot transmit textbooks, course packs, or other materials that are typically purchased or acquired by students.
• The performance or display is directly related to and of material assistance to the teaching.
• The transmission is limited to students enrolled in the course for which the transmission is made, or to governmental employees as part of their official duties or employment.
• The transmitting body (a school, for example) must institute copyright policies that provide some measure of guidance to its faculty, students, and staff that describe and promote compliance with U.S. copyright law. Furthermore, the institution must notify students that the materials transmitted may be subject to copyright protection.
• If a work is transmitted digitally, the institution must apply technological measures that prevent those who receive it from retaining the work beyond the time the class is in session. The institution also must make sure that the work is not further disseminated. In addition, it must not do anything that interferes with technological measures a copyright owner uses to prevent permanent retention or further unauthorized dissemination.

Congress made it clear that there must be some institutional controls. First, materials that are stored on systems or networks cannot be accessible to anyone other than anticipated recipients. Not only must you have a secure network, but you must also ensure that no one other than the intended recipients can access the information transmitted. Second, copies cannot reside on networks any longer than is necessary to facilitate the transmissions.

There are other provisions of the TEACH Act that may be of interest, such as the provisions permitting the making of a temporary (“ephemeral”) copy of a work in order to transmit it, and permitting the conversion of a print or other analog work to digital format if a digital version of the work is not available to the institution, or, if a digital version is available, it is subject to technological protective measures that prevent it from being used for the section 110(2) exemption.^[30]

This is only a taste of the TEACH Act. Many universities have helpful information on their Web sites to help you apply the TEACH Act.^[31]

Image Collections

Academic and special libraries often maintain collections of images on slides. Some are purchased, while others were reproduced from photographs or books of photographs. Two questions come to mind. First, may a library copy images from a published source? Second, may a library digitize images from its physical collection?

Because photographs are subject to copyright protection, an educator or librarian needs permission to copy protected images unless the copying is a fair use or otherwise allowed under the Copyright Act. An important exception, however, are non-creative photographs of works in the public domain, which are not copyrightable because they lack originality. We discussed this in Chapter One. You need not seek permission nor pay royalties to copy those works.

A compilation of images also may be copyrighted as a collective work. When this is the case, copying dozens of images from, say, a coffee table book of rock ‘n’ roll posters also may require permission from whoever has copyright in the compilation. This is true even when the original work is not protected. For example, copying numerous photos from a book that reproduces nineteenth-century artwork may violate copyright in the collective work, even though both the original paintings and the photographs of those paintings are in the public domain.

What about a library or archive’s slide collections? To suggest that they must destroy their collections of copied slides would be presumptuous. Such collections have been common practice in libraries and archives for decades. Having a slide collection is different from digitizing them. This is an unsettled area of law, so for guidance we will rely on the Visual Resources Association’s 2004 Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections, which are included in Appendix L.^[32] Many colleges and universities have either adopted or adapted the Guidelines to help them collect and manage their image collections. For librarians, the most interesting part of the Guidelines details the circumstances in which library copying of published images is likely to be fair use. Fair use is likely when:

1. Images of suitable quality are not readily available at a reasonable cost and in a reasonable time from any of the options listed above [purchase, license, donation, inter-library loan, original onsite imaging],
2. Images will not be shared between or among other educational institutions if such use is prohibited by the terms of their acquisition,
3. Images will be used for comment, criticism, review, analysis, discussion, or other similar purpose associated with instruction or scholarship, and
4. Images will be used for purposes that are both nonprofit and educational.

The VRA Guidelines seem reasonable, but they are not binding and some institutions add or subtract from them. For example, a library may wisely choose

• to limit to a reasonable amount the number of images taken from a single published source (say, no more than 10%).
• to limit access to digital images to students enrolled in the course.
• not to use images scanned for a particular course in a subsequent course without first checking if it is available for purchase.
• to post these guidelines on the university’s website and where the collections are maintained.

Handling copyright questions relating to images is not much different from other types of works. Is the image under copyright? Does a statutory exemption (fair use, section 108, TEACH Act) permit the use? If not, seek permission.

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1. 17 U.S.C. § 101 (2006).
2. 464 U.S. 417 (1984).
3. Ned Snow, The TiVo Question: Does Skipping Commercials Violate Copyright Law?, 56 Syracuse L. Rev. 27, 29 (2005) (arguing that DVRs’ enabling viewers to skip commercials is infringing).
4. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 133 (2d Cir. 2008).
5. 542 F. Supp. 1156 (W.D.N.Y. 1982).
6. 127 Cong. Rec. 24,048–49 (Oct. 14, 1981) (statement of Rep. Kastenmeier).
7. 17 U.S.C. § 108(i) (2006).
8. H.R. Rep. No. 94-1733, at 73.
9. 17 U.S.C. § 101 (2006).
10. California Op. Att’y Gen. No. 81-503 (Feb. 5, 1982).
11. Utah Op. Att’y Gen. No. 82-03 (Sept. 22, 1982).
12. Alaska Op. Att’y Gen. No 366-404-82 (June 11, 1982).
13. Louisiana Op. Att’y Gen. No. 84-436 (Jan. 10, 1985).
14. Louisiana Op. Att’y Gen. No. 88-576 (Dec. 19, 1988).
15. Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984).
16. Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986).
17. Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278 (9th Cir. 1989).
18. H.R. Rep. No. 94-1476, at 64.
19. Id.
20. See the Motion Picture Licensing Corporation’s FAQs, available at http://www.mplc.org/page/faqs.
21. http://www.libraryvideo.com/articles/article22.asp. For additional discussions of public performance of audiovisual works in libraries, see Laura Jenemann, Public Performance Rights Management in Academic Libraries, 77th IFLA General Conference and Assembly (Aug. 2011), available at http://conference.ifla.org/sites/default/files/files/papers/ifla77/161-jenemann-en.pdf; and Brandon Butler, Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims, Research Library Issues: A Bimonthly Report from ARL, CNI, and SPARC, no. 276 (September 2011), at 20, available at http://publications.arl.org/rli276/.
22. Ohio Op. Att’y Gen. No 87-108 (Dec. 29, 1987), Copyright L. Rep. (CCH) ¶ 26,240.
23. J. Wesley Cochran, Why Can’t I Watch This Video Here? Copyright Confusion and Performance of Videocassettes & Videodiscs in Libraries, 15 Hastings Comm. & Ent. L.J. 837, 877 (1993) (applying statutory factors and arguing that viewing films in libraries for educational purposes is likely a fair use).
24. 17 U.S.C. § 110 (2006).
25. H.R. Rep. No. 94-1476, at 81.
26. Id.
27. American Library Association, Model Policy Concerning College and University Photocopying for Classroom Research and Library Reserve Use (1982), available at http://old.cni.org/docs/infopols/ALA.html.
28. H.R. Rep. No. 94-1476, at 64.
29. Pub. L. No. 107-273, § 13301(b), 116 Stat. 1758, 1910–12 (2002).
30. 17 U.S.C. § 112(f)(2) (2006).
31. See, for example, pages from Columbia University (http://copyright.columbia.edu/copyright/special-topics/distance-education/), the University of Minnesota (http://www.lib.umn.edu/copyright/teaching), and North Carolina State University (http://www.provost.nesu.edu/copyright/toolkit/).
32. The VRA Guidelines are available at http://www.vraweb.org/resources/ipr/guidelines.html. Also see the VRA’s Statement on the Fair Use of Images for Teaching, Research and Study, at http://www.vraweb.org/organization/pdf/VRAFairUseGuidelinesFinal.pdf.