May a faculty member who is teaching online digitize and stream documentary and Hollywood produced films in their entirety in order to illustrate a theme being covered in that class?
Earlier this week, I gave a presentation at Electronic Resources & Libraries on the rise in demand at colleges and universities for streamed video and how libraries can best address this need on the part of teaching faculty. Part of my discussion addressed the challenges copyright compliance presents in meeting this need. The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. Oh, and let’s not forget, there is the DMCA, prohibiting the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may a professor do?
Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and it is unlikely that an argument can be made that an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:
Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]
A fair use argument for streaming an entire film also is flawed. Factors two and three weigh against fair use given the creative nature of film making and the quantity used. Recently, it has been suggested that because the purpose of the use is for other than entertainment, that it is transformative and under factor one fair use is favored. Whether there is a substantial effect on the market under factor four has been raised as an issue in the complaint against UCLA.
But faculty are not without alternatives should streaming an entire film not be permissible under current copyright law. There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors.
The Association for Information and Media Equipment (AIME) made good on its threat earlier this year by filing a copyright infringement lawsuit this week against the University of California system and the chancellor of the UC Los Angeles campus (UCLA). The challenge levied both in January 2010 and in the Dec. 7th filing contends that UCLA infringed upon the copyrights of Ambrose Video, one of the institutional members of AIME, by copying (in violation of the DMCA), digitizing and streaming full length Ambrose Video DVD content via a password protected on-demand technology delivery system. Specifically, the complaint alleges that UCLA digitized a DVD series of BBC Shakespearean productions and streamed them more than 130 times to students and faculty.
Ambrose Video, like many film distribution companies including Films for the Humanities, New Day Films, and California Newsreel, provide by license, which is assented to upon purchase of their DVD products, that digitization and streaming of DVD content is prohibited and that a separate license must be purchased. Ambrose and these other film distribution companies offer, as part of their services, streaming video on-demand from their own servers or by license from an institution’s servers. AIME contends in its complaint that the actions of UCLA are not only a violation of license (hence, a breach of contract) but also, by digitizing and streaming its members’ DVDs, colleges and universities are unfairly preempting this emerging market and great harm will be sustained by the educational video business.
UCLA’s stance is that its actions fall within three exemptions of the Copyright Act, 17 U.S.C. § 101 et seq. First, UCLA claims that the streaming of full length DVD content constitutes a public display under § 110(1). Second, the University claims that the TEACH Act exemption at § 110(2) applies. Finally, UCLA resorts, as a fallback position, to the fair use exemption at § 107. In its complaint, AIME addresses each of these assertions of exemption. AIME contends that the streaming of content is not a public display because the attendant requirement of “face to face” teaching is not present. Rather, students and faculty can access the streamed content on-demand, at any time and at any place, and not necessarily simultaneously. The TEACH Act exemption does not apply, according to AIME, because the Ambrose Video DVDs are separately marketed as available for “mediated instructional activities” through its on-demand streaming service. The TEACH Act expressly excludes from its exemptions those works explicitly produced and sold for distance learning. The TEACH Act also, albeit ambiguously, limits its exemption to “limited and reasonable” portions of fictional or dramatic works. In this case, entire DVDs were streamed. Finally, the result of a balancing of the four factors of fair use likely would not extend protection to the actions of UCLA, argues AIME, because of the aforementioned harm to the market and the streaming of entire DVDs.
The AIME suit against UCLA, unlike the copyright litigation instituted by journal publishers against Georgia State for its e-reserves practices, seeks monetary damages in addition to injunctive and other relief. My sincere hope is that the budget crisis faced by the UC system will not lead it to enter into a quick settlement of the dispute and thereby deny us the opportunity to have these pervading questions answered by a court of law. I also hope that the new Copyright Czarina, members of Congress, and the Library of Congress will note the important issues raised by this case and take steps to update the Copyright Act through amendment or design of further exemptions to address the opportunities technology offers educators and students so that pedagogical goals in the online classroom can be met same as in the physical classroom.