Home » Licensing
Category Archives: Licensing
Scholasticus: When is showing a film a public performance?
I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?
Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class. So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.
Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.
(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)
Scholasticus: License and Registration, Please.
Does an author have to register a work with Copyright Office in Washington in order to have a copyright in his work?
Once a work is created in a fixed and tangible form, copyright ownership immediately vests in the creator of the work. Registration or publication of notice with the Copyright Office is not required. Further, use of a copyright symbol or similar notation is no longer required in order to claim copyright in an authored or created work. However, registration does become important if infringement occurs and the owner wishes to pursue legal remedies. Registration, particularly if done in a timely manner, creates a legal presumption of validity and allows an owner to recover a certain level of damages and fees. Further, registration can help defend against a claim of innocent infringement, which mitigates against an award of damages. It is important to remember that even if an owner registers his or her copyright in a work, the exemption of fair use still applies.
Aside from formal registration, another means that creators and authors can use to give notice of not only their status as owner of a work but also of their extension of permission to use their work is through a Creative Commons license. Copyright law, as written, creates an “all rights reserved” form of license. However, persons interested in the sharing of knowledge, the creation of new culture, and the encouragement of further scholarship can designate through a Creative Commons license commercial and/or non-commercial uses of their work that are permitted. There are a variety of free licenses that can be displayed. Creators and authors can determine, by answering a few simple questions, what license best applies to the permissions they want to grant. Use of Creative Commons is a great way of achieving balance within the current copyright system.
The Message or the Messenger?
The Copyright Clearance Center (CCC) released today a brief marketing video advertising its annual copyright license for academic institutions. By paying for the license, institutions have “ready and easy” access to copyrighted materials covered by the license for use in coursepacks, e-reserves, and course management systems. There is no mention of how paying for this license includes paying for uses that would otherwise not require permission. Last week, a colleague at another institution directed my attention to another recently posted video on CCC’s site; this video is targeted, in a rather creative and humorous way, toward faculty and students. The video presents the black letter of the law, including a brief explanation of fair use, but with a subtle overtone of fear and guilt for using an author’s work without compensation. Notably, there is no indication or mention of how CCC is funding the lawsuit against Georgia State University for copyright infringement.
Ironically, another “Code of Best Practices in Fair Use” was released today by the Center for Social Media. This latest Code is for poets; previously, the Center produced codes of best practices for documentary film makers, online video creators, and dance performers. A Code for academic librarians, prepared by the Center and the Association of Research Libraries, is currently being researched and drafted. The general sentiment of these Codes is the promotion of the liberal use of copyrighted materials without permission or compensation; the creation of new culture preferred over compensation for owners. Further, the Codes are offered as an alternative to the oft-criticized guidelines put forth by Congress and others. However, as I’ve posed previously, the choice of a Code or Guidelines is more a matter of semantics than valid and binding interpretation. A similar issue concerning copyright and the interpretation by users and owners persists in Canada. The public comment period for Bill C-32, which reforms Canada’s copyright law to expand and clarify fair dealing for education, will soon conclude. The state of the Tariff on Secondary Education remains in limbo. On one side of these issues is Access Copyright, an organization like CCC, whose business is to sell annual licenses to academic institutions; on the other, institutions, faculty and students championing free and liberal use. While Access Copyright is not currently funding any litigation, it is the primary author and proponent of the tariff; it is also a vocal objector to C-32.
In both cases, I do not fully support one side or the other. Behind each message is a messenger with motives, which I may or may not agree with. Of course, in practice, standing in the middle and maintaining an unbiased and objective stance is challenging, particularly when dealing on a daily basis with persons representing the viewpoints on both sides of the fair use vs. fair compensation question. But until the message I hear is one from a legislative or judicial messenger, that is where I will remain standing.
The Terms that Bind
Accompanying nearly every item of electronic technology, whether it is software, database, or digital media device, is a document that dictates how that technology may be used. These documents, known more commonly as “terms of use” or “license agreements,” are contractually binding on both the provider and the consumer, even if that consumer is an academic institution and its constituents. A common misconception amongst users of electronic technology in an academic context is that these terms of use can be eschewed on grounds of educational fair use or academic freedom.
One example of such misconception is the use of Netflix subscriptions by academic libraries. Following the publication of an article in Library Trends detailing the workflow created at a community college library to manage a Netflix subscription, how the subscription was used as a tool for collection development, and the limitations of a subscription compared to library ownership of media, several libraries spoke out about their own experiences utilizing Netflix on an institutional basis. In response, several publications, including the Chronicle of Higher Education and American Libraries, reflected upon the legalities of this practice. The author of the Library Trends piece indicated that the library’s Netflix subscription complied with federal copyright law because teaching faculty were permitted to display legally obtained films in a face-to-face classroom situation. While her interpretation of copyright law is correct, whether or not the films were obtained “legally” is doubtful. Per the Netflix Terms of Use agreed to by any one subscribing to their service, “use of the Netflix service … is solely for your personal and non-commercial use.” This indicates that use of the Netflix service by an institution to circulate videos to their service population is a violation of these terms, which in essence is a breach of contract. Academic copyright expert and attorney Kevin Smith agrees. As quoted in the Chronicle, Smith states: “My personal opinion is that the risk of a contract problem makes it not worthwhile for us to have a program to lend discs that we borrow from Netflix. It’s not a copyright issue. It’s an issue of the contract between the user and Netflix.” Further, Netflix does not offer institutional subscriptions and “frowns upon” libraries loaning Netflix DVDs or video stream to faculty members to share with students.
Another common misunderstanding arises in the use of full text materials accessible through licensed databases. While libraries and universities strive to include the most liberal of usage terms when negotiating licenses for scholarly databases, oftentimes use is curtailed in the interest of access. Institutions are forced to not only pay high subscription costs but also bargain away certain uses in order to secure convenient and complete electronic access to full text scholarly journals for faculty and students. Yale University maintains an excellent web site dedicated to promoting the creation of agreements with publishers that assure access to knowledge. The site also provides links to many of the most common scholarly content publishers and hosts licenses. As an example of the challenge faced by libraries and academic institutions when trying to serve the needs of their community and at the same time comply with the legally binding terms of the publishers’ agreements, review the Terms and Conditions of Use of JSTOR. Paragraphs 2.1 and 2.2 specify the permitted and prohibited uses of content found on JSTOR. Pursuant to paragraph 2.1 “Authorized Users may search, view, reproduce, display, download, print, perform, and distribute Licensed Content” for a variety of purposes, including research activities and classroom instruction; however, such uses will be deemed in violation of the terms of the license should they appear to be any of the practices detailed in paragraph 2.2, such as the reproduction or distribution of content in bulk in course packs or electronic reserves. As stated previously, this reality is a reason why the academic community should champion open access.
