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.