Visual Media Services

COPYRIGHT ISSUES RELATING TO AUDIOVISUAL MEDIA

The educational media market
The nature of copyright
Types of audiovisual copyright
Public performance: the face-to-face teaching exemption
"Fair use" in copying portions of copyrighted works
"Fair use" in off-air videotaping: the Kastenmeier guidelines
Examples of permitted and prohibited usage
Copyright reference materials

Unauthorized copying of Visual Media Services media materials is a violation of federal law

THE OPINIONS IN THIS DOCUMENT ARE THOSE OF THE Visual Media Services MANAGER, WHO DOES NOT POSSESS LEGAL TRAINING. IN GENERAL THE GUIDELINES RELATE SPECIFICALLY TO AUDIOVISUAL MEDIA. THIS MEMO IS THE PRODUCT OF RESEARCH, BUT DOES NOT CONSTITUTE LEGAL ADVICE.

THE EDUCATIONAL MEDIA MARKET

Instructional audiovisual media are usually obtained from either mainline educational vendors (those companies producing programs mainly for the school market), or from educational television programming. ETV producers reach larger markets than do mainline vendors. Accordingly, the curriculum-based media available from the latter generally cost significantly more to purchase than do ETV programs.

As educators, we naturally want to bring the highest quality materials into the classroom. In the face of restrictive school budgets and high video costs, it may seem justifiable to be unconcerned about copyright issues. Educational institutions have already been granted generous exemptions to some copyright provisions. If we wish to have quality media products available in the future, we must set an example in helping protect the vendors' rights.

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THE NATURE OF COPYRIGHT

The copyright law grants to the copyright holder (not the purchaser) the following exclusive rights:

REPRODUCTION OF THE WORK IN ANY FORM, including the transfer of deteriorating prints.
Preparation of derivative works or adaptations.
Any distribution, in any manner, of copies.
Authorization of any and all public performances, broadcasts, theatrical productions, etc.

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TYPES OF AUDIOVISUAL COPYRIGHT

Home Use Video - Most rental video is licensed for home use only, i.e. restricted to use by the family or a small group of friends in the home. Educational institutions are permitted, under certain conditions, to utilize home use video for teaching purposes. See Public performance: the face-to-face teaching exemption.
Public Performance Rights - Most video produced by mainline educational vendors bears public performance rights. A "public performance" is a showing in a place open to the public, or at a place where a number of people outside the normal circle of the family and friends are gathered, such as a classroom. In general, materials rented or purchased from home video stores do not possess public performance rights. Most Visual Media Services media bear these rights and may be utilized in non-profit settings by member schools. The higher cost of items with public performance rights is one reason that Visual Media Services media are so expensive. Public performance rights do not permit duplication or broadcast of programs.
Theatrical Rights - Theatrical rights include the ability to publicly perform an item and charge an admission. Visual Media Services does not purchase theatrical rights.
Educational Site Licenses - Some educational vendors sell titles at discounted rates to individual schools. These items are restricted to use at that school. If your school has purchased such materials, they are not available for interlibrary loan. All Visual Media Services media may be legally shown by any member school.
"Educational Rights" - This term is sometimes advertised by low-cost educational vendors. Legally, the term is meaningless. Videos marketed with this label are actually home use titles which must be used in the classroom under certain restrictions. See Public performance: the face-to-face teaching exemption.
Duplication Rights - Two issues are involved, the copying of selected portions of a copyrighted work and reproduction of a work in its entirety. Under the copyright concept of fair use, limited duplication of either print or audiovisual media is permitted under certain conditions. See "Fair use" in copying portions of copyrighted works. Legal copying of a work in its entirety requires the purchase of a special, and usually quite limited, duplication license from the copyright holder. Visual Media Services does not purchase duplication rights. Copying, in its entirety, any Visual Media Services media item is a violation of copyright law and Visual Media Services policy
Off-Air Taping - The U.S. Supreme Court has held that off-air taping by individuals for home use is legal in most cases. The same is not true for taping programs for use in a classroom setting. The use of off-air taped materials by teachers is permitted, under the "fair use" concept, only under certain restricted conditions. See "Fair use" in off-air videotaping: the Kastenmeier guidelines.
Broadcast Rights and Distance Learning-Transmission of an audiovisual program from one building to a separate location requires the purchase of broadcast rights. The costs of such licenses, which generally are renewed annually, vary among vendors and fees usually increase with the size of the potential audience. No Visual Media Services materials bear broadcast rights.
Closed circuit transmission - Many schools use closed circuit transmission of video programs from a video server in a central building to classrooms in the same building or same campus. In the absence of purchased broadcast rights, such delivery is currently a legal gray area. An additional issue is whether transmission occurs simultaneously to multiple classrooms. A Visual Media Services survey of educational vendors suggests that most have no objection to in-building transmission and most do not object to simultaneous transmission to multiple classrooms. Some vendors grant permission, but the school is required to seek permission. When in doubt, check with the vendor.

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PUBLIC PERFORMANCE: THE FACE-TO-FACE TEACHING EXEMPTION

Teachers may use "Home Use Only" video under certain limitations. Such usages are legal if they satisfy all of the following five conditions and are also permitted by the video store purchase or rental agreement:

Use of the item must be by a teacher, pupil, guest instructor or similar person.
The use must be by a non-profit educational institution.
The use must be in the context of a face-to-face teaching situation as a regular part of the systematic instructional activities of the institution. Use must be directly related to the lesson content.
Usage is restricted to classrooms or similar places regularly used for instruction, or in the homes of privately tutored students. Exhibition in the lunchroom would not qualify.
The item used must be a legally made copy.

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"FAIR USE" IN COPYING PORTIONS OF COPYRIGHTED WORKS

Educators and students are allowed to make limited copies of portions of educational media under certain guidelines for NON-PROFIT EDUCATIONAL PURPOSES ONLY. Utilization of media materials under this "fair use" concept does not require permission from the copyright holder. All four of the following criteria must be met:

The user must be sure that the item will be utilized in a non-commercial setting.
The user must consider the nature and format of the work, in particular, the size of the potential audience. "Fair use" of audio-visual materials is more limited than for books, for instance.
The user must consider the "amount and substantiality" of the portion copied in relation to the entirety of the work. An extraction of a short segment which is also the most significant portion of the work might not be "fair use." In particular, copying all, or most, of a program is not "fair use."
Any usage which would cause a potential loss of sales of the work is not "fair use".

If you are in doubt of the legality of excerpting a media item, call Visual Media Services.

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"FAIR USE" IN OFF-AIR VIDEO TAPING: THE KASTENMEIER GUIDELINES

The copyright laws do not address the question of the legality of videotaping television programs for instructional use. The U.S. House of Representatives has issued a series of widely accepted suggestions, known as the Kastenmeier Guidelines, relating to the "fair use" of off-air taping. Any instance of off-air taping not meeting the standards of the Kastenmeier Guidelines is certainly in violation of the law.

The Guidelines may be summarized as follows:

The Guidelines apply only to off-air recordings by non-profit educational institutions. Taping should be done by a school authority, not by the teacher.
A broadcast program may be recorded simultaneously with broadcast and retained for a period not to exceed 45 days from date of recording. The recording may be used once, with one repetition, for instructional purposes within the first 10 school days following recording. During the rest of the 45 days, the video may be shown to teachers, etc. (not students) solely for the purpose of evaluation for possible purchase. Following 45 days, the recording must be erased or otherwise destroyed. The term "broadcast programs" refers to television programs which are transmitted to the general public for reception without charge (i.e., not including premium cable or satellite channels). Cable channels may be recorded only if the programs are also transmitted on-air in your area.
Off-air recordings must be used by individual teachers in the course of relevant teaching activities once only, with one additional showing for educational reinforcement only. Use must be in a classroom or similar place devoted to instruction within a single building or cluster, or in the homes of students receiving at-home tutoring.
Recordings must be requested and used by individual teachers. Regular recording in anticipation of requests is prohibited. No program may be recorded more than one time for a given teacher regardless of how many times the program is broadcast.
A limited number of copies may be reproduced from each off-air recording to meet legitimate needs of teachers, as for example if several teachers request recording of the same program. Each copy must be subject to the same restrictions as the original.
A recorded program need not be used in its entirety, however the program may not be altered from its original format and may not be electronically or otherwise combined or merged to form anthologies or compilations. Every recording must include the copyright notice.
Educational institutions are expected to establish control procedures to maintain the integrity of the Guidelines.

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EXAMPLES OF PERMITTED AND PROHIBITED USAGE

The following examples illustrate a number of usages which relate to current law and/or guidelines:

Permitted (or probably legal):

Off-air taping of a broadcast program by an authority from an educational institution at a location removed from the site of the institution, as long as all of the Kastenmeier Guidelines apply.
Rental of a video from a home video store for classroom use where the face-to-face teaching limitations apply and where the video store agreement does not preclude such usage.
Closed circuit transmission of an AV item within a building with the permission of the producer/distributor.
Taping of an ETV program by a media center for in-school showing at a more convenient time.
Viewing of a public library video by several students in the home of one of the students.
Showing a video from an educational library, such as Visual Media Services, where the item has been purchased from an educational film distributor, to a Boy Scout group in the school lunchroom in the evening.
Taping a program from a local cable channel which is also transmitted on-air, under the Kastenmeier Guidelines.

Prohibited (or questionable):

Off-air taping of a PBS program by a teacher for use in his class. (Violation of Kastenmeier Guidelines which specify that taping must be by a school authority.)
Showing a home video store copy of Star Wars to a class on the last day of school, or during a snow day in the school lunchroom. (Violation of "fair use" as non-educational in both instances, and because showing does not occur in a classroom or similar instructional locale in the latter.)
Showing a public library copy of Macbeth to a book discussion group in the high school library. (Violation of "fair use" because the group is not made up of enrolled class members and the use occurs outside the social acquaintance circle of the family.)
Backup of a deteriorating, out-of-print video to dvd format without permission of the producer. (Audiovisual works are specifically excluded from archival copying privileges)
Off-air taping of satellite transmissions by a teacher at home or by the school or district media center for use in the classroom. (Federal law considers satellite transmission to be private communication which cannot be recorded for viewing by others in an institutional or business setting.)
Showing, in the library, a home video store copy of Macbeth, which was originally shown under the "fair use" guidelines in an English class, to several students who missed the classroom showing. (Violation of "fair use" unless the library is regularly used as a classroom.)

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COPYRIGHT REFERENCE MATERIALS

Print and Media Resources

Complete Copyright for K-12 Librarians and Educators by Carrie Russell, 2012.
Copyright Clarity: How Fair Use Supports Digital Learning by Renee Hobbs, 2010.
Copyright for Schools: A Practical Guide by Carol Simpson, 2005.
Teaching with Digital Video: Watch, Analyze, Create, ed. by Glen L. Bull, 2010.

Internet Resources

Revised 2013

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