Statutory Law

Case Law

Commentary

Scenarios

Statutory Law: text of sections 110 and 112

Works Consulted

Author

Statutory Law

Section 110. Limitations on exclusive rights: Exemption of certain performances and displays, U.S. Copyright Act, 17 U.S.C. § 110. [Note: the text of sections 110 and 112 is found at the end of this chapter after the Scenarios section.]

Case Law

Association for Information Media and Equipment et al. v. The Regents of the University of California et al., Case No. 2:10-cv-09378-CBM (U.S.D.C., C.D.Calif., Nov. 20, 2012).

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT

CONSUELO B. MARSHALL, District Judge.

The matter before the Court is Defendants’ Motion to Dismiss the Second Amended Complaint (“Motion to Dismiss”). [Docket No. 43.]

1. FACTUAL AND PROCEDURAL BACKGROUND
2. Factual Overview
3. The Parties

Plaintiff Ambrose Video Publishing, Inc. (“AVP”) is an educational video producer and the alleged holder of all exclusive rights associated with the specific copyrighted works in question in this case. (Second Amended Complaint (“SAC”) ¶ 2, Docket No 38.) Association for Information Media and Equipment (“AIME”) is a national trade association whose mission is to help ensure copyright education and compliance, and whose membership includes AVP and other video copyright owners. (Id.) Plaintiffs filed suit against The Regents of the University of California, Mark Yudof, President of the University of California, Dr. Gene Block, Chancellor of UCLA, Dr. Sharon Farb, UCLA’s Associate University Librarian for Collection Management and Scholarly Communication, Larry Loeher, UCLA’s Associate Vice Provost and Director of Instructional Development, and Patricia O’Donnell, Manager of UCLA’s Instructional Media Collections and Services and Media Lab, all in their official and individual capacities, and John Does 1-50. (Id. at ¶ 1.) [Docket No. 38.]

2. Alleged Licensing Agreement and UCLA’s Alleged Use

Plaintiffs allege that Defendants copied DVDs licensed by AVP and other AIME members, reformatted them, and put the DVD content on the “Internet or UCLA intranet.” (Id. at ¶ 3.) Plaintiffs also allege that UCLA, at the direction or supervision of Defendants Farb, Loeher, and O’Donnell, copied an AVP program “The Plays of William Shakespeare” and put it on the internet so the students and faculty could access the content online through a practice referred to as streaming. (Id. at ¶¶ 6-7.) AVP alleges that a viewer of the DVD does not have to be in an educational setting to stream the content, but that the person can view the video wherever the person can access the UCLA network. (Id. at ¶¶ 46-48.) According to the SAC, Defendants utilize Video Furnace, a system manufactured and sold by Hai Vision Systems, Inc., that allows for the recording and “transmission and distribution to computers and set top boxes.” (Id. at ¶ 4.)

In 2009, AVP, through AIME, contacted UCLA through its Chancellor, objecting to this use of the AVP DVDs. (Id. at ¶ 9.) UCLA, after initially desisting the practice, informed AVP that it believed it had the right to copy or stream the AVP DVDs and reinstated its streaming process. (Id. at ¶ 12.)

1. Procedural History

Plaintiffs’ First Amended Complaint (“FAC”) asserts nine claims for breach of contract, anticipatory breach of contract, copyright infringement, declaratory relief, circumvention under the Digital Millennium Copyright Act (“DMCA”), breach of implied covenant of good faith and fair dealing, unjust enrichment, tortious interference with contractual relations, and tortious interference with prospective business advantage. (FAC at ¶¶ 33-44, Docket No. 21.)

Defendants’ filed a Motion to Dismiss the First Amended Complaint based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and arguing that: (1) they are immune from suit; (2) Plaintiff AIME lacks standing; and (3) Plaintiffs have failed to state a claim upon which relief can be granted. [Docket No. 27.] The Court granted that motion and dismissed (1) all claims against the Regents and any claims seeking damages against individuals in their official capacity with prejudice; (2) the declaratory relief claim asserted by AIME without prejudice for lack of sufficient allegations to support standing; (3) all claims for injunctive relief against Defendants Yudof and Block without prejudice for failure to state a claim; (4) Plaintiffs’ federal copyright infringement claim and DMCA claim without prejudice for failure to state a claim; (5) and Plaintiff’s state law claims without prejudice for failure to state a claim not preempted by the Copyright Act. [Docket No. 34.]

The Plaintiffs then filed a Second Amended Complaint (“SAC”) asserting the same nine causes of action plus a new cause of action for deprivation of property without due process of law. [Docket No. 38.] Defendants’ present Motion to Dismiss argues that (1) AIME has not alleged any new facts to alter this Court’s finding that AIME lacks standing, (2) they are either sovereignly or qualifiedly immune, and (3) Plaintiffs have failed to state a claim upon which relief can be granted. [Docket No. 43.] Plaintiffs filed an opposition (“Pls.’ Opp’n”) and Defendants filed a reply (“Defs.’ Reply Br.”), both of which the Court has considered. [Docket Nos. 44, 45.]

[…]

1. STANDARD OF LAW

[…]

1. 1. Whether an Average Person Would Have Known That the Streaming Constitutes Fair Use

Section 107 of the Copyright Act provides that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The code section provides four factors to be balanced in determining whether a use constitutes fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. Id.

The first factor balances in favor of finding fair use. The second factor recognizes that fair use is more difficult to establish with creative works than informational and functional works. See Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997). “[T]his factor typically has not been terribly significant in the overall fair use balancing . . . .” Id. The works here—Shakespeare plays—are clearly creative works, but are used within an informational and educational context. The Court finds that this factor is neutral. The third factor weighs in favor of not finding fair use because the entire works were streamed, not just portions. Plaintiff makes a compelling argument, however, that this situation is analogous to “time shifting” in the context of television broadcasts in which a motion picture is recorded to be performed again at a different time. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984). Nevertheless, the Court finds that this factor weighs slightly against a finding of fair use. Finally, the fourth factor weighs in favor of finding fair use because a student who watches an AVP DVD in a classroom is no more likely to purchase the DVD than if the student watches the DVD on his or her computer.

After balancing these factors, the Court concludes that there is, at a minimum, ambiguity as to whether Defendants’ streaming constitutes fair use and that it would not have been clear to a reasonable person in Defendants’ position that its streaming did not constitute fair use. Notably, no Court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area.

[…]

1. Whether Ambrose Sufficiently Alleged Facts to Support Its Cause of Action for Copyright Infringement

Plaintiffs contend that they have alleged facts to support five separate copyright infringements, discussed in turn.

1. Whether Ambrose Sufficiently Alleged Facts to Support Its Claim for Infringement of the Exclusive Right to Publicly Perform the Work

Plaintiffs concede that the license grants Defendants the right to display the DVDs in a classroom or in a library to students. This Court held previously that whether students accessed the DVDs “overseas or at a coffee shop” as opposed to in a classroom or a library did not change the nature of the viewing of the DVDs or take the viewing out of the educational context. (Order at 9:19-21.) None of the new allegations in the SAC change the Court’s analysis. The Court therefore grants the motion to dismiss with prejudice as to this claim.

2. Whether Ambrose Sufficiently Alleged Facts to Support Its Claim for Infringement of the Exclusive Right to Copy the Work

This Court previously held that any copying of the DVDs was incidental to the right that Plaintiff licensed to Defendants, and therefore constitutes incidental fair use. (Order at 10:14-15.) The SAC does contain additional allegations as to the process used by the Video Furnace software to prepare a DVD for streaming, including that “in order to upload and AVP DVD into Video Furnace, the web administrator must create a copy of the DVD.” (See SAC at ¶¶ 49-57.) While the SAC may include new details, the Court has already considered the allegation that Defendants copy the DVD in order to stream it and concluded that any such copying is incidental fair use. The new allegations do not change the Court’s analysis, and the allegations still do not state a claim. The Court therefore grants the motion to dismiss with prejudice as to this claim.

3. Whether Ambrose Sufficiently Alleged Facts to Support Its Claim for Infringement of the Exclusive Right to Publicly Distribute the Work

Previously, this Court held that streaming is not distribution under the Copyright Act. Under the Copyright Act, distributed items must be “material objects” in which a copy is “fixed.” 17 U.S.C. § 101. Plaintiffs’ new allegations that “the Video Furnace system administrator retains an original copy of the AVP DVD while distributing copies to end users, which copies remain on the end user’s computer as long as the Video Furnace InStream player remains open” does not change this outcome. For a copy to be fixed, it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101. The “copy” on the end users computer, as alleged, is not fixed. The Court therefore grants the motion to dismiss with prejudice as to this claim.

4. Whether Ambrose Sufficiently Alleged Facts to Support Its Claim for Infringement of the Exclusive Right to Publicly Display the Work

This Court previously held that Plaintiffs failed to allege facts showing any non-sequential display as required under the Copyright Act. The SAC includes new allegations that “the Video Furnace technology permits faculty to edit and store videos so that images in videos displayed on student computers can be displayed non-sequentially.” (SAC at ¶ 54, Exs. 13, 14.) The Court accepts these allegations as true, but the allegations do not allege a non-sequential display. The allegations only speculate about the software’s capabilities, insufficient to survive a motion to dismiss. See Twombly, 550 U.S. at 545 (“Factual allegations must be enough to raise a right to relief above the speculative level. . . .”). The Court dismisses with prejudice this claim.

5. Whether Ambrose Sufficiently Alleged Facts to Support Its Claim for Infringement of the Exclusive Right to Creative Derivative Works

Plaintiffs have included this new claim for the first time in the Second Amended Complaint. The alleged facts are that the Video Furnace software is capable of being used to create derivative works. As with Plaintiffs’ claim for breach of exclusive right to publicly display, these allegations merely speculate about capabilities. As such, the Court dismisses with prejudice this claim.

[…]

1. CONCLUSION

For the reasons stated above, the Court grants Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint with prejudice.

IT IS SO ORDERED.

Commentary

The AIME case above is one of the few cases addressing the display and performance of copyrighted works in an educational context. This case was dismissed with prejudice, however, so we have no judicial rulings on this matter. In this case, AIME alleged that UCLA’s streaming of video content to students was copyright infringement and breach of contract. In the dismissal, “the Court concludes that there is, at a minimum, ambiguity as to whether Defendants’ streaming constitutes fair use and that it would not have been clear to a reasonable person in Defendants’ position that its streaming did not constitute fair use. Notably, no Court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area” (AIME 11). While this case is not instructive on the application of section 110 to the use of copyrighted works in education, it does provide insight on how a court may consider fair use for streaming videos to students enrolled in a class.

Many educational uses of copyrighted works implicate U.S. Copyright Law. Two specific educational exceptions in U.S. Copyright Law, however, include the distribution, performance, and transmission of copyrighted works in the classroom and distance learning: sections 110(1) and (2). Also, section 107 fair use may be an applicable exception for some educational uses, which is demonstrated in the court’s consideration of fair use for streaming videos in the AIME case.

Since there is not case law on point for the Classroom Exception (section 110(1)) and the TEACH Act (section 110(2)), often the legislative history is consulted to provide more information on the intent of Congress in enacting this legislation. This is particularly true for the TEACH Act, enacted in 2002. For example, the Copyright Office completed the “Report on Copyright and Digital Distance Education” in 1999. The Copyright Office report was referenced in the 2001 Senate Judiciary Committee’s Senate Report 107-31 which provides insight into the rationale of the legislators in drafting the provisions of the TEACH Act.

Section 110(1) or the Classroom Exception

The Classroom Exception was included in the US Copyright Act of 1976 for displays and performances of copyrighted works as part of face-to-face teaching. There are several conditions which must be met for this exception to apply. First, the instructors or students may provide the performance or display but it is limited to in person classes (not distance education) at non-profit educational institutions. Therefore, for-profit educational institutions cannot rely on this exception. Accreditation of the educational institution is not a requirement. Second, the face-to-face teaching takes place in a classroom or “similar place devoted to instruction” (17 U.S.C. § 110(1)). A “similar place devoted to instruction” is not specifically defined in the statute but could be a gym, art studio, library or other space that hosts instructional activities. Finally, this exception would not apply if the display or performance was provided from a copy that was not lawfully made and “that the person responsible for the performance knew or had reason to believe was not lawfully made” (17 U.S.C. § 110(1)).

This exception is relied upon by instructors and students daily in classrooms from kindergartens to universities. Few of these instructors know of this exception in U.S. Copyright Law, instead relying on this foundation of teaching practices as a matter of course. Finally, the scope of this exception is only the display and performance of works in face-to-face instruction. Any reproduction or distribution of copies of copyrighted works to students would need to be considered under a fair use analysis.

Section 110(2) or the TEACH Act

The Technology, Education, and Copyright Harmonization Act was passed into law in 2002 and is commonly referred to as the TEACH Act. It replaced 110(2) as it was enacted in the 1976 U.S. Copyright Law. The TEACH Act applies to performances and displays of copyrighted works transmitted as part of online courses, which can be synchronous or asynchronous. Unlike the Classroom Exception, the TEACH Act has a number of conditions for implementation which place requirements on instructors and also on their institutions, making it more challenging to successfully comply.

For the institution, there are several threshold requirements. First, the institution must be an accredited nonprofit educational institution or a governmental body (17 U.S.C. § 110(2)). As with the Classroom Exception, for-profit educational institutions cannot rely on this exception. Note that accreditation is an additional requirement not found in the Classroom Exception.

Second, the institution is required to have copyright policies and also provide copyright information to faculty, students and staff to promote compliance with U.S. Copyright Law. In addition, the institution or instructor must provide a notice to students that the materials used in the course may be subject to copyright protection (17 U.S.C. § 110(2)(D)(i)).

The TEACH Act also has several technological requirements that would need to be addressed by the institution. The transmission is limited to students enrolled in the class, “to the extent technologically feasible” (17 U.S.C. § 110(2)(C)). For digital transmissions, there must be technological controls that would reasonably prevent “retention of the work in accessible form by recipients of the transmission . . . for longer than the class session” (17 U.S.C. § 110(2)(D)(ii)). However, the class may be either synchronous or asynchronous, and therefore the length of the class session could vary according to pedagogical needs of distance education (Armatas 437). The institution must also reasonably prevent further unauthorized dissemination of the work to others and is required not to “engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination” (17 U.S.C. § 110(2)(D)(ii)). However, these technological requirements are not expected to be impermeable, relying on reasonable measures which are technologically feasible. The TEACH Act absolves an institution of liability for copying by third parties beyond its control but requires that copies stored on the institution’s servers not be accessible longer than reasonably necessary for the class (Armatas 439).

For the instructor, there are additional requirements. First, the use of the work must be directed by or “under the under the actual supervision of an instructor” and it must be “an integral part of a class session offered as a regular part of the systematic mediated instructional activities” (17 U.S.C. § 110(2)(A)). In addition, the performance or display of the work “is directly related and of material assistance to the teaching content” (17 U.S.C. § 110(2)(B)). These criteria connect the copyrighted work to the curriculum and do not include either the instructor or the students using a work for entertainment purposes (Armatas 413).

Second, the instructor will need to consider the additional limitations of the TEACH Act on types and portions of works which can be transmitted. The works which may be transmitted include:

• the performance of a nondramatic literary works (such as poetry) or nondramatic musical works (such as songs, but not musical theater or operas) in their entirety
• the performance of other works (such as films and tv shows) but only in “reasonable and limited portions”
• the display of any work (such as images) must be “in an amount comparable to that which is typically displayed in the course of a live classroom session” (17 U.S.C. § 110 (2)).

The instructor must also consider that works “produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks” are excluded under the TEACH Act (17 U.S.C. § 110 (2)). Finally, as with the Classroom Exception, the work being transmitted must be “lawfully made and acquired” under U.S. Copyright Law (17 U.S.C. § 110 (2)).

With the various technological and other requirements of the TEACH Act, many educational institutions and instructors struggle to comply. One approach to this challenge is checklists, broken down in a way that instructors can work through a series of requirements to determine if they can comply. One of the first TEACH Act Toolkits was created by Peggy Hoon and is hosted on the Louisiana State University Libraries website. The Original TEACH Act Toolkit includes a Basic Checklist for instructors and an Expanded Checklist for the institution (Hoon). Using a slightly different approach, the TEACH Act Checklist in Copyright Law for Librarians and Educators is broken into likely responsibilities of instructors, the institution, and information technologists (Crews 290-291). Both of these checklists recognize that no instructor can implement the TEACH Act without their institution investing in the technological infrastructure necessary for compliance.

Another challenging aspect of the TEACH Act for instructors is obtaining or creating digital copies for use in the online course. The TEACH Act is the result of an attempt to balance the concerns of copyright owners with the uses of their works in an educational environment. One concern for copyright owners was that analog works would be digitized and made available in a format easily downloaded and further disseminated (Crews 166). Therefore, the use of digital versions is expected when available. If there is not a digital version available, or if the digital version has technological protection measures, Section 112(f)(2) allows for conversion from an analog copy, but only in reasonable and limited portions for performance and display in the course (Armatas 440). However, this section does not permit bypassing the technological protection measures of the digital version, which is governed by the Digital Millennium Copyright Act (DMCA).

These restrictions and requirements are challenging for both instructors and institutions to navigate, and particularly impact teaching with films. If an instructor wants to use a film under the TEACH Act, they could not legally digitize the VHS version unless there was not a digital version, like a DVD. However, if there is a DVD version which is protected by technological protection measures, the instructor would not be able to break the encryption per the Digital Millennium Copyright Act, or DMCA, as codified in Section 1201 of U.S. Copyright Law. In that instance, the instructor could digitize the VHS version, assuming that a VHS tape is even available, but only for reasonable and limited portions. The instructor could also screen capture the output of a DVD as it played, which is not breaking the technological protection measure, but the quality of the screen capture may or may not be suitable for the pedagogical purpose and only a reasonable and limited portion could be used in the online class.

A provision of the DMCA is triennial rulemaking, in which the Register of Copyrights is required to conduct proceedings to examine and review the effect of the DMCA on the use of copyrighted works (Crews 233). The final rules are published in the Code of Federal Regulations and are in effect for that three-year period unless they are renewed. The Section 1201 Rulemaking: Seventh Triennial Proceedings were in 2018, and the Eighth Triennial Proceedings are in 2021. These regulatory exceptions have included provisions that allow for the circumvention of technological protection systems on motion pictures, including for educational purposes (Crews 234). The Seventh Triennial Proceedings resulted in an exception allowing content to be decrypted “where circumvention is undertaken solely in order to make use of short portions of the motion pictures . . . [f]or educational purposes [b]y college and university faculty and students or kindergarten through twelfth-grade (K–12) educators and students (where the K–12 student is circumventing under the direct supervision of an educator).” (37 C.F.R. § 201.40(b)(1)(ii)) Therefore, in circumstances where compliance with the TEACH Act may not be feasible when addressing how to make a digital copy for online courses, the latest exemptions to prohibition against circumvention in 37 C.F.R. § 201.40 may provide an alternative, but only for ‘short portions’ of motion pictures. It is always best to check the latest Triennial Rules since the provisions are very detailed, tailored to specific circumstances, and subject to change every three years.

Finally, a continuing frustration for instructors teaching with film is the “reasonable and limited portion” language in the TEACH Act, which is mirrored in the “short portions” language in the DMCA exemption. Since its passage in 2002, the definition of “reasonable and limited portion” has been questioned because no definition is included in the TEACH Act. In the legislative history of the TEACH Act, the Senate Report notes that, “what constitutes a ‘reasonable and limited portion’ should take into account the nature of the market for that type of work and the instructional purposes of the performance” (Senate Report 107-31 at 7-8). A Congressional Research Service report in 2006 explores this question of amount and considers that “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 an educational goal: however, the likelihood of an entire film portrayal being ‘reasonable and limited’ may be rare” (CRS Report 4). It must be noted that neither the Senate Report nor the Congressional Research Service report have the force of law but remind us that if the TEACH Act does not serve an instructor’s pedagogical purposes, a fair use analysis can be the next step.

Section 107 Fair Use

When implementing the TEACH Act, the institutions which can manage the technological requirements will often rely on the TEACH Act for portions of works for online courses, but not for entire works unless it is the performance of a nondramatic literary or musical work. Nothing in the TEACH Act, however, precludes applying a fair use analysis for online courses and distance education. In 1999, the Copyright Office provided a report to the Senate, which emphasized that “if any legislative action is taken with regard to distance education, we strongly recommend that report language specifically address certain fair use principles” (Copyright Office Report 162). The Senate Report includes the following from the Copyright Office Report:

Fair use is a critical part of the distance education landscape. Not only instructional performances and displays, but also other educational uses of works, such as the provision of supplementary materials or student downloading of course materials, will continue to be subject to the fair use doctrine. Fair use could apply as well to instructional transmissions not covered by the changes to section 110(2) recommended above. Thus, for example, the performance of more than a limited portion of a dramatic work in a distance education program might qualify as fair use in appropriate circumstances (Copyright Office Report 161-162; Senate Report 11).

For online courses, a fair use analysis may lead to a different conclusion than an analysis under the TEACH Act. Even in face-to-face instruction as covered in the Classroom Exception, many instructors rely on fair use for course readings on reserves. Please see the chapter on Fair Use in this textbook (mlpp.pressbooks.pub/librarylaw/chapter/copyright-fair-use/) and the chapter on the Georgia State Copyright Lawsuit (mlpp.pressbooks.pub/librarylaw/chapter/copyright-library-reserves/#commentary) for a fuller discussion of fair use and course reserves.

Licensing

Finally, the growing licensed ebook, ejournal, and streaming video collections in libraries may provide additional options for instructors teaching online classes and reduce reliance on the TEACH Act. As a practical matter, linking to licensed content does not make a copy and therefore does not implicate copyright law, but all uses should still comply with the license terms. Some streaming services, like Netflix, Hulu, and others, have vast catalogs of content but do not license to the education market. Asking students to subscribe to these services to access streamed content is an option, but it is certainly less than ideal. Librarians and instructors working together often find the best solutions to meet the pedagogical goals of the instructor and the needs of the students. For further information on licensing, see the Licensing Electronic Resources chapter in this textbook (mlpp.pressbooks.pub/librarylaw/chapter/licensing-electronic-resources/).

Scenarios

Scenario 1

You are a reference librarian in a university library for a large state university. At the new faculty orientation, you meet Professor Doolittle. She is teaching her first class at your university for the next term. She will be teaching on campus and has some questions about the services of the library. She would like to meet with you to visit the library and will also be visiting the classroom assigned to her class. She emails you the syllabus she used at her previous institution. In addition to the textbook students will purchase, she has listed the following required course materials for students:

• 5 articles which are available in your library licensed electronic journals
• 2 book chapters, one only available in print at your library, and one available in your library collection as an ebook.
• 2 films, one of which is owned by Professor Doolittle and is shown during class time and the second of which is available in the library collection as a DVD

All of the required course materials are protected by copyright. Your library has a course reserve system which integrates course readings into the university course management system. The course management system restricts access to the instructor and students enrolled in the class. You will be meeting with Professor Doolittle tomorrow to discuss options for making these required readings available to her students. Discuss your advice to Professor Doolittle for each of the required course materials. Consider which copyright exception(s) may apply.

Scenario 2

A year later Professor Doolittle contacts you because she has been informed by her department chair that next semester her class will only be offered online. She asks to meet with you because she wants to keep the same syllabus and remembers how helpful you were when she first arrived at the university. She is a bit panicked because she has never taught an online class. Prior to meeting with her, you re-assess her syllabus. Discuss your advice to Professor Doolittle for each of the required course materials. Consider which copyright exception(s) may apply and whether compliance with the exception would likely be the responsibility of the university or Professor Doolittle as the instructor.

Scenario 3

Professor Doolittle has a daughter enrolled in the local public library’s after school program which provides homework help and educational opportunities for K-12 students. Professor Doolittle recommends a film from 2010 to Casey Shane, the librarian running the program. Casey agrees that the film would be educational and plans to show it to the students in the conference room of the public library next month. What copyright advice would you give Casey? Consider which copyright exception(s) may apply.

Statutory Law: text of sections 110 and 112.

Section 110. Limitations on exclusive rights: Exemption of certain performances and displays. Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—

(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;

(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—

(i) students officially enrolled in the course for which the transmission is made; or

(ii) officers or employees of governmental bodies as a part of their official duties or employment; and

(D) the transmitting body or institution—

(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and

(ii) in the case of digital transmissions—

(I) applies technological measures that reasonably prevent—

(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and

(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and

(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

[Text for 110(5) through 110(11) deleted for brevity]

In paragraph (2), the term “mediated instructional activities” with respect to the performance or display of a work by digital transmission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting. The term does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.

For purposes of paragraph (2), accreditation—

(A) with respect to an institution providing post-secondary education, shall be as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the United States Department of Education; and

(B) with respect to an institution providing elementary or secondary education, shall be as recognized by the applicable state certification or licensing procedures.

For purposes of paragraph (2), no governmental body or accredited nonprofit educational institution shall be liable for infringement by reason of the transient or temporary storage of material carried out through the automatic technical process of a digital transmission of the performance or display of that material as authorized under paragraph (2). No such material stored on the system or network controlled or operated by the transmitting body or institution under this paragraph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients. No such copy shall be maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary to facilitate the transmissions for which it was made.

112 – Limitations on exclusive rights: Ephemeral recordings

[Text for 112(a) through 112(e) deleted for brevity]

(f)(1) Notwithstanding the provisions of section 106, and without limiting the application of subsection (b), it is not an infringement of copyright for a governmental body or other nonprofit educational institution entitled under section 110(2) to transmit a performance or display to make copies or phonorecords of a work that is in digital form and, solely to the extent permitted in paragraph (2), of a work that is in analog form, embodying the performance or display to be used for making transmissions authorized under section 110(2), if—

(A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and

(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).

(2) This subsection does not authorize the conversion of print or other analog versions of works into digital formats, except that such conversion is permitted hereunder, only with respect to the amount of such works authorized to be performed or displayed under section 110(2), if—

(A) no digital version of the work is available to the institution; or

(B) the digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for section 110(2).

Works Consulted

Armatas, Steven A. “Enactment of the TEACH Act.” Distance Learning and Copyright: A Guide to Legal Issues. American Bar Association, 2008.

Association for Information Media and Equipment et al. v. Regents of the University of California et al. (No. 2:10-cv-09378-CBM)

Crews, Kenneth. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 4th ed. American Library Association, 2020.

Hoon, Peggy. “The Original TEACH Act Toolkit.” Louisiana State University Libraries, lib.lsu.edu/services/copyright/teach/index.

McGeveran, William and Fisher, William W., The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age. Berkman Center Research Publication No. 2006-09, August 2002, dx.doi.org/10.2139/ssrn.923465.

United States, Congressional Research Service, Library of Congress. “Copyright Exemptions for Distance Education: 17 U.S.C. § 110(2), the Technology, Education, and Copyright Harmonization Act of 2002.” CRS Report for Congress, July 2006, old.copyright.byu.edu/wp-content/uploads/2018/03/CRS-TEACH-Act.pdf.

United States, Copyright Office, Library of Congress. “Exemptions to Prohibition Against Circumvention of Copyright Protection Systems for Access Control Technologies.” Code of Federal Regulations, Government Printing Office, 2018. (37 C.F.R. § 201.40(b)), www.govinfo.gov/content/pkg/FR-2018-10-26/pdf/2018-23241.pdf.

—. “Report on Copyright and Digital Distance Education.” May 1999, www.copyright.gov/reports/de_rprt.pdf.

United States Senate, Senate Judiciary Committee. Senate Report 107-31. Technology, Education and Copyright Harmonization Act of 2001. Government Printing Office, June 2001, www.congress.gov/congressional-report/107th-congress/senate-report/31.

Author

Lisa A. Macklin (she/her/hers) is Associate Dean for Research, Engagement, and Scholarly Communications for Emory University Libraries with responsibility over Collection Management, Research and Engagement (three teams of subject librarians for Humanities, International Area Studies, and Sciences and Social Sciences), Instruction and Engagement, Assessment and User Experience, and Scholarly Communications.  Her areas of focus include the application of copyright law to teaching, research, and publishing as well as transformations in scholarship and publishing, including new models of scholarship in digital form and the Open Access movement. She served as Principal Investigator on a grant from the Andrew W. Mellon Foundation to create a Model Publishing Contract for Digital Scholarship and is co-creator of two MOOCs on copyright for educators and librarians. Lisa has an M.L.I.S. from University of South Florida and a J.D. from Georgia State University.