COVID-19, Copyright, & Library Superpowers (Part III)

Zoom, Zoom, Zoom: Copyright and Face-to-Face TEACH-ing in a COVID-19 World

by Brandon Butler, Kyle K. Courtney, and Tucker Taylor

*The opinions expressed on this website are the co-authors’ own, expressed in their personal capacity. If this were legal advice, it would come with a bill.*

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If you work in any of the higher ed institutions that have moved online in this crisis, we are sure you are dealing with the stress that comes with upending syllabus in the middle of the year – and moving the classroom space to another environment, which may be foreign, may have different pedagogy and even more issues.

As this blog is aimed at the library, archives, and teaching community, we know many of you are working towards the best solution for the people we serve in this time of crisis.

For this post, Brandon Butler, Tucker Taylor and I will be talking about the new realities of moving online – focusing on copyright and what I call the “Zoom question!” But first we’ll take a slight detour through a dense and rarely traveled forest of the Copyright Act: Section 110(2), also known as the TEACH Act. 

Performances and Face-to-Face Teaching: JUST DO IT!

Much like the critical exceptions we covered in the previous blog posts (Part I: Section 107 Fair Use and Part II: Section 108 Library Exceptions), Section 110(1) which covers face-to-face teaching, is another powerful exception that is critical to education. This section in the Copyright Act provides teachers and students with very broad leeway to perform or display copyrighted works in the physical classroom without having to obtain permission from the copyright owner. Such performances or displays “in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” are not infringements of copyright.

Section 110(1) is broad and simple. It allows faculty to show movies and television shows, recite poetry, perform plays, listen to music, or read from a book aloud without fear of infringement. So, if you have to watch a film in the classroom for discussion, the instructor can borrow a DVD from the library, and play it in the classroom. No additional fee or license is necessary.

A TEACH Act for the Encouragement of Online Learning?

With the advent of online distance learning in the 1990s, there was concern that the Section 110(1) face-to-face teaching provision really did not apply. Of course, an instructor could use fair use, and that discussion will come later, when we cover “the Zoom question.” But for now, let’s pause a moment to consider the statute that was passed to deal with the online learning conundrum: the TEACH Act.

Passed in 2002 and codified at Section 110(2) of the Copyright Act, the TEACH Act allows accredited, nonprofit educational institutions to use copyrighted materials in distance education courses without the need to obtain permission from the copyright owner. Sounds like fair use, right? Wrong.

The TEACH Act was produced by many rounds of negotiation and lobbying, and as a result it looks more like a regulation than a statute.  Satisfying the requirements of the TEACH Act can be quite burdensome for some institutions. Designing a TEACH-compliant program can take time and resources.  If an institution is starting from scratch with TEACH, it might not work well for the exigent circumstances of the COVID-19 crisis and the speed with which many were thrust online. Consider the many limitations TEACH imposes.

First, the TEACH Act allows only certain materials to be used, and only in certain ways:

• nondramatic literary works (such as readings from books or poetry) or nondramatic musical works (such as songs but not opera or musical theater) may be performed in their entirety
• reasonable and limited portions of any other work (such as a clip from a movie or television show) may be performed, and
• any work displayed must be “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

Sometimes we learn by comparison with what is not covered. The TEACH Act does not permit:

• performances of an entire dramatic literary or musical work (such as a play, opera, or musical theater) or, arguably, an entire movie or television show (but fun fact: the Congressional Research Service published a Report on TEACH that suggests that an entire film could be a “reasonable limited portion” if that is the amount that would be appropriate for the teaching use);
• performances or displays of works that are created and marketed for use in distance education;
• textbooks, study guides, or other course materials that are typically purchased, licensed, loaned, or utilized under fair use;
• any works that were created or obtained illegally.

From here there are further requirements

• § 110(2)(A): The class materials must be performed or displayed “at the direction of or under the actual supervision of the instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities” of the university. 
• § 110(2)(B): The class materials to be performed or displayed must be “directly related and of material assistance to the teaching content of the transmission.”
• § 110(2)(C) the site where the class materials are posted must be limited, “to the extent technologically feasible,” to students “officially enrolled in the course.” 
• 17 U.S.C. § 110(2)(D)(ii): the institution must use technological measures to reasonably prevent retention of the material “for longer than the class session,” and to prevent students from “unauthorized further dissemination” of the work. 
• 17 U.S.C. § 110(2)(D)(i): Lastly, the institution must establish policies that promote copyright compliance and provide students with a copyright notice that the materials may be under copyright protection.

Again, satisfying these requirements may be feasible in large scale systems that already have policies, IT systems, copyright notices, and other requirements set up. However, many institutions simply do not have the time, infrastructure or bandwidth to comply as they pivot to online class delivery during the COVID-19 crisis.  Where the TEACH act might fail, fair use could be the flexible option to employ.

[See LSU’s TEACH Act Toolkit for more]

Fair Use and The Zoom Question – Can I Stream a Movie [Live] Over Zoom?

The prevalence and power of the Zoom video chat service has many people asking: Can I use Zoom’s screen-sharing functionality to screen films for my courses? 

Well, it depends! (Sorry, we couldn’t resist.) But it really does depend—on several issues that factor into the famous fair use calculus. While Section 110(1) is powerful because it tells you, categorically, what you can do, that clarity also means Section 110(1) can’t flex to accommodate new situations. Fair use can. Another key factor is the Digital Millennium Copyright Act (DMCA), which creates extra roadblocks for some technological uses. We will mix it up a little and start with fair use “in reverse,” going from market harm through purpose, and then talk about the DMCA, and finally say a little bit about licensing.

Fair Use § 107: 4, 3, 2, 1….

Factor Four: Market 

One factor that can matter a lot for fair use is the effect of your use on the market for the work. If your use simply replaces what would normally be a purchase or license, you will have a harder time arguing for fair use. That’s why we recommend a “market check” if you want to screen an entire film or films for your class. If the titles you need are readily available on affordable commercial services (Amazon Prime, Hulu, Netflix, etc.) or on library platforms like Swank or Kanopy, obtaining access through those channels might make more sense than streaming with Zoom. Many movies are currently free(!) through various video vendors  (see this list): Vendor COVID-19 Related Donations and Pro Bono Access (aka Vendor Love in the Time of COVID-19) 

And, even though fewer and fewer films are available on DVD, Blu-Ray, or VHS (!), they certainly are easier to physically purchase, and your library may already hold them in its physical collections (which may or may not be accessible during this crisis…). With physical media in hand, you could make a fair use of various clips and scenes for your non-profit educational use. However, when these films are only available through a streaming service, you face new legal questions, because you access streaming films subject to a restrictive license. We discuss the trouble with licenses in more depth below.

Factor Three: Amount 

The next factor, the amount and substantiality of your use, is closely related to purpose and market harm. Both the amount of the film you screen and the extent of the access you provide should be appropriate in light of your educational purpose. 

In some cases, showing portions of a movie may be more appropriate than showing entire films. Clips should be limited in length as appropriate in light of the pedagogical goal. If the class is only analyzing particular scenes, shots, or dialog, limit showing the film to only the appropriate clips. 

In almost every case, ensuring the screening is only accessible to enrolled students will be crucial. Using an LMS system that is protected by authentication (Blackboard, Canvas, and other LMS systems) certainly helps to “mimic the classroom” access via technology. Limiting Zoom attendance to enrolled students will have the same effect. The duration of access should also be limited to what’s appropriate for the teaching goal, and a synchronous “screening” via Zoom would ensure that access is limited to the duration of the session.  And, additionally, the technology in Zoom can prevent anyone from recording these films – the host merely has to switch the record option “off.” In short, take only what is appropriate for your teaching goals, for only the amount of time that is appropriate.

Factor Two: Nature

While the law is more protective of works that are more creative (or unpublished works) many courts have recently de-emphasized this factor’s impact. Some courts, doing a modern fair use analysis, have called this a “neutral” factor. As you can imagine, many classes that use media and film draw upon a wide breadth and scope of creativity, from factual documentaries to science fiction and fantasy. Any use of a film could be appropriate, but be sure to balance out all the other factors.

Factor One: Purpose 

The last factor we will consider is factor one – the nature and the purpose of the use. Ask: What is the purpose in screening the film? Fair use will be more friendly to screenings that are closely tied to the course’s overall learning objectives. Is the film listed in the syllabus? If asked, could you clearly explain the pedagogical purpose of screening the film?  Fair use favors educational use, but to argue your use is educational, you will need to tie the screening closely to the course’s learning goals.

Transformativeness is another important factor in many fair use scenarios. If your use is for a new purpose, different from the original commercial or expressive purpose of the film, your use could be considered transformative. Few feature films are made to be studied in an academic setting, of course, so many educational screenings of a film are arguably transformative. But the more orthogonal the screening is to the film’s original purpose, the easier it is to argue the use is transformative. Advertisements and breaking news coverage, for example, have a very limited commercial and expressive purpose, such that screening and critiquing these works in a (virtual) classroom context is easy to characterize as novel and transformative. Screening a dramatic film intended to provoke complex thought, where the learning experience consists primarily in unpacking the meanings and messages in the film, may be more difficult to characterize as transformative. 

Relatedly, the more a faculty member does to add new commentary, value, meaning, and messages to the screening, the greater the transformative use. So far, we’ve been assuming that your screening is fairly straightforward—the instructor might briefly introduce the film, but then she plays the film uninterrupted for its duration. However, a screening that is punctuated with numerous interventions by the instructor would be much more transformative, and therefore much more likely to pass fair use muster. The instructor would be changing the viewing experience substantially, adding meaning and messages of her own, throughout the experience. Arguably, the experience could also be transformed by an instructor’s interventions before or after the screening, as well.

Each fair use scenario is different – whether DVD clips, streaming, synchronous “zoomed” screening  – so you must apply the factors, weigh the risk, and act in good faith. COVID-19 crisis or not, always apply fair use prudently and manage risk sensibly.

DMCA

So you’ve done the fair use calculus and you’re feeling good about your use. Sadly, your work may not be done. The Digital Millennium Copyright Act created a new right in addition to traditional copyright: a bar on circumvention of effective technical protection measures. In other words, if you break a digital lock, you may be in trouble, even if what you do afterward is legitimate. 

Accordingly, one thing we can ask about screening movies on Zoom is whether you have to break a digital lock to do so. That depends on where your media comes from, and how you get it into Zoom. Every DVD is encrypted and can only be played by a licensed player, which is equipped with a key. Apps that literally “rip” a DVD by decrypting and copying the digital signal are using a bootleg key, and ripping DVDs with these apps may therefore violate the DMCA. Many streaming services are also encrypted, and can only be recorded using tools that break the encryption, so again: recording then streaming could bring DMCA angst. 

On the other hand, if you play a DVD using a (licensed) DVD player (including a lawful DVD player app that reads the disc in your computer’s drive), or you start a lawfully licensed stream, and then you share your screen, you may not be breaking the digital lock. Instead, you’re capturing the video signal “in the clear,” after it’s been decrypted by a licensed player. Rightsholders themselves have suggested that “capturing” the screen as a video plays in this way does not circumvent the encryption on a disc or a stream.

Another factor to consider is that the Librarian of Congress has recognized DMCA exemptions for many years that allow “excerpts” of motion pictures (including television programs and videos) for criticism and comment for educational uses by college and university or K-12 faculty and students. But note that “excerpts” is not the full movie. So ripping DVD clips for a class will likely avoid any DMCA heartburn, but ripping an entire film will not.

Lastly: Licensing

While this issue is a bit beyond the scope of this post, licensing has impacted many uses of modern e-media in the classroom. As we well know, streaming services have become the norm. No one “owns” anything in the licensed transaction, we are all just renting temporary access to the work. So our normal library-like powers are forbidden via the license. Netflix, for example, limits their service to “personal and non-commercial use only” and “may not be shared with individuals beyond your household.” We do work with great faculty and staff, and our students are fantastic, but they are certainly not our “household!” 

Additionally, a person subscribing to Netflix agrees “not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use content and information contained on or obtained from…the service.” These terms are clearly attempting to restrict any educational use, including classroom use, library use, or fair use.

But let’s put these issues aside for the moment, could we even get an educational or library license for these materials that only appear on these streaming services? No.

Frustratingly, the streaming giants such as Amazon, Netflix, Disney+, Hulu, and others have refused to license their services to schools, libraries, or educational institutions in any capacity. This refusal has critically limited the supply of legally authorized film and videos available for use. Libraries, educators, and departments are having a hard time finding resources not connected to streaming platforms, making it difficult to educate in the way they would like – but especially during this COVID-19 crisis.

So where does that leave us?  The truth is that sometimes standard commercial streaming options like Netflix, Amazon, Hulu, and Disney+ and others may be the easiest option. In fact, for some exclusive content, the commercial services may be the only option. Asking students to use personal subscriptions to stream content on these services asynchronously may be an option, depending on the instructor’s teaching plan.

This raises an interesting point to consider for future semesters, when we do not have to thrust our learning online with little to no preparation: are Netflix, Amazon, Hulu, and Disney+ subscriptions the new “textbook” of the future? Is a subscription to these services just the fee for the required material a student needs for their courses? If this question makes you nervous, it should – because the textbook market is still a serious financial, ethical, and technological issue for many students around the world.

Ending on a Good Note!

For those of you who still feel a little uneasy at not having a definitive answer to the “can I use this” question, that’s OK.  Keep in mind that in many cases, there will be limitations placed on the damages that people can pursue. We’d all like a checklist that ends with a clear YES, but that’s not what fair use is.  Fair use’s value lies in the fact that it is not a checklist. Fair use allows the law to flex along with our societies’ needs during times of rapid change. Take heart in the fact that teaching, scholarship and research are specifically mentioned in the fair use statute, and these phrases were written into the statute with our fellow staff, patrons, students, faculty, and the public in mind.  If there ever were a time for fair use to shine, a public health crisis has to top that list. So keep calm, and “fair use on” in a thoughtful and educated way.