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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.)