The “public display or performance” of a copyrighted work is a right granted to the copyright holder by the 1976 Copyright Act. Playing a video (regardless of media format, VHS, DVD, CD, etc.) in any location open to the public, or any place a group of people is gathered, outside of a normal circle of family and friends, is a violation of this right. Residence halls or Greek housing units are considered public locations. Transmitting a video by any means, including broadcast, cablecast and closed circuit, is also a violation of copyright
Educational vendors usually distribute audiovisual media under a specific “license agreement.” This agreement often includes “limited public performance” permission that allows the media to be shown publicly without violating copyright. In most cases, the limitations are for public use in a single building or on a single, geographically unified campus. If public performance rights are available, it is the best interest of BGSU to acquire media including these rights.
Some independently produced materials and entertainment materials, including motion pictures and television shows, are marketed as “home-use only.” Copies of these titles purchased from local retail outlets, video rental stores, or borrowed from public libraries do not typically include public performance rights. For these titles public performance rights may not be available or may be cost prohibitive to the institution. In these situations, if there is no other media that will serve the purpose, BGSU must work within the fair-use guidelines for audiovisual materials.
Using Audiovisual Materials
Traditional Classroom Setting (Fair Use Guidelines)
In order for a video, that is not cleared for public performance, including “home-use only” videos, to be used in the traditional classroom setting the following four statements must be TRUE.
• The performance must be presented by instructors or pupils enrolled in the specific course. Only individuals enrolled in the course can be present for the performance.
• The performance must occur in the course of face-to-face teaching activities and be directly related to the curriculum currently being taught, not previous or upcoming lessons. Materials cannot be shown as a reward.
• The performance must take place in a classroom, or similar place of instruction, of a non-profit educational institution.
• The performance must be of a legally acquired copy of the work.
If the video has been “paid for” by someone, including yourself, the local library, the video rental store, or the friend you borrowed it from, it is legally acquired. Audiovisual materials taped off-air following the Off-air Taping Guidelines (attached) are also considered legally acquired when shown within the time limits set forth by the Guidelines. Satellite and cable channels are not covered by these Guidelines.
Assuming each of these four conditions is met, playing the media in the traditional classroom setting will not violate copyright.
Library use (traditional reserve)
In the Jerome Library Reserve Room, BGSU provides private viewing facilities for individuals (study carrels) and small groups for faculty, staff and student use. Because the library is a public place, performances or displays in the facility are considered “public displays.” The Fair Use Guidelines do not apply to viewings/displays in the library because the “face-to-face teaching” requirement is not met.
Materials for which public performance rights have been acquired can be viewed in the library reserve room without violating copyright.
Materials for which public performance rights have NOT been acquired can generally be broken into two categories, legally acquired and not legally acquired.
Legally acquired materials are those that have been “paid for” by someone, including yourself, the local library, the video rental store, or the friend from whom you borrowed it. The practice of depositing these legally acquired materials for course reserve use in the Reserve Room falls into an extremely grey area of the law. The Reserve Room will accept these materials for use in connection with the teaching activities of a specific class, on the assumption that use of these materials constitutes a logical and necessary extension of classroom teaching. Video materials deposited on reserve for a class will be returned to the faculty member at the end of the semester in which they are used.
Materials that have NOT been legally acquired would include those taken off-air without obtaining prior permission or license from the copyright holder, or prerecorded materials that have been illegally copied. The materials should not be accepted for inclusion in the Reserve Room. Because of the time frame required to add materials to the reserve system, no off-air materials will be accepted.
Library use (Assets in the library collection)
The BGSU Library System has several video assets in their collection available to patrons. While some of these assets have public performance rights, most do not. Materials with public performance rights can be viewed in the library viewing facilities, or checked out for a wide variety of uses, including classroom viewing, staff meetings, organizational meetings and other non-course related viewings such as viewing in a patron's private residence. Assets without public performance rights, cannot be publicly displayed. They cannot be viewed in any public viewing facility, including the facilities in the library. These materials will be available for circulation only for use in a university classroom, assuming the 4 rules of classroom fair use are met. Viewing in the private residence of a patron is also allowed. The assets without public performance rights cannot be shown to university groups or organizations.
Distance Learning (synchronous and asynchronous)
Prior to the “Technology, Education and Copyright Harmonization Act” (TEACH Act), Section 110(2) of the U.S. Copyright Law detailed the requirements for distance learning (synchronous transmission of teaching activities in real time to distance students in limited locations.) This section of the law specifically excluded audiovisual works. Therefore films and videos were not permitted in synchronous distance learning situations.
The TEACH Act allows audiovisual works to be used in both synchronous and asynchronous distance education, with specific restrictions. Before adopting the TEACH Act, specific institutional, technological and instructional requirements must be met. For a detailed view of these requirements, please review ( http://www.ala.org/ala/washoff/WOissues/copyrightb/distanceed/teachsummary.pdf )
Assuming the institutional, technological and instructional requirements of the TEACH Act are in place, a faculty member may incorporate up to 10% of the total or 3 minutes, whichever is less, of any legally acquired motion media.
Non-class Related Performance
Public performance rights are required for any non-class related viewing that occurs outside an individual residential room. This implies that videos without public performance clearance CANNOT be shown in lecture halls, seminar rooms, meeting rooms, residence hall or Greek unit lounges, or any other university facility.
Sites Used:
http://www.lib.berkeley.edu/MRC/Copyright.html
http://www.copyright.gov/title17/circ92.pdf
http://www.ala.org/ala/washoff/WOissues/copyrightb/distanceed/teachsummary.pdf
Books
Simpson, Carol. Copyright for Schools: A Practical Guide, 3rd edition . Linworth Publishing, Inc., 2001.