The following information is from the Alamo Colleges: Office of Legal Services-October 2010 "Copyright FAQs and Fair Use"
1) I want to show An Inconvenient Truth to the students in my art history class, or I am showing Rear Window in my film class. Am I covered by educational fair use?
Answer:
A Fair Use evaluation should be done to determine the importance of the film to the course work and whether it is an integral part of instruction – it cannot be for entertainment purposes. If the content meets the criteria, it is permissible to show the film in a face-to-face class setting so long as the copy of the film being shown was lawfully made. Generally, performance of a work by an instructor in a face-to-face educational setting does not infringe on copyright protection (17 U.S.C.A. § 110).
2) I want the media center to convert the old Destinos VHS tapes to DVD for archival purposes. The tapes are worn out and I think the DVDs should circulate – OR – We own a copy of the Destinos series on VHS but the demand for these tapes is high. I want the media center to make more copies of the original so students can check them out. Since we own the VHS tapes, there shouldn’t be any violation of copyright, correct?
Answer:
Although the physical tape is owned by the college, the exclusive right to reproduce or make copies of it is reserved for the author/copyright owner. It is permissible for the library to make a preservation copy of a lawfully obtained, institution owned, VHS tape but you may not convert the material into a new media format such as DVD. (17 U.S.C.A. § 108)
3) We’re hosting a film series for the members of our college and surrounding community. (By the way, we are not charging anything to show the film). I assume that because we have invited students and it’s being shown on our campus that we’re covered by educational fair use.
Answer:
The audience and purpose of the film performance drastically affects the answer in relation to previous questions. Fair Use does not apply when exhibiting the film to non-students, outside the classroom setting, even without charging a fee. There are motion picture copyright clearing houses which can provide a lawfully obtained copy for display outside the classroom.
4) I want to copy a program from C-Span (HBO or other non-public broadcasting station) to show to one of my classes. Is this educational fair use?
Answer:
Each non-public broadcast should be individually evaluated to determine whether it is permissible to copy and rebroadcast the program. Each program will have its own specific copyright protection and may allow for rebroadcast. Fair Use applies to public broadcasting and allows for the recordation and rebroadcast of programs for educational purposes with the following restrictions: (1) the tape can only be used once with each class; (2) the recording must be used within 10 days of recording; and (3) the recording must be erased after 45 days. Failure to comply with the restrictions is infringement of the copyright. (17 U.S.C.A. §118)
5) I am going to begin teaching a music class online. I want to show my students the Zeffirelli’s version of Pagliacci. Will I be restricted in the amount I can show? OR Can the college upload digital motion pictures to the streaming video site for performance in distance education?
Answer:
Motion picture performance is permissible under Fair Use if the content is determined to be important to the course work, is an integral part of instruction, and is delivered in a face-to-face learning environment. However, for online courses the exceptions to copyright protection allow for performance of non-dramatic, literary and musical works, or reasonable and limited portions of other works; or display of a work in an amount comparable to what is typically displayed in a live classroom session. 17 U.S.C.A. §110(2) To show the motion picture, the following conditions must be met:
a. The copy must be lawfully obtained;
b. The college must not attempt to bypass any security measure of the copyrighted work (anti-circumvention);
c. The work must not be retained after the class session;
d. The college must take steps to prevent unauthorized access and dissemination; and
e. The work must be an integral part of the course (i.e., not for entertainment)
The piece at issue should always be evaluated for Fair Use – separate from the reliance on §110(2). If the developed course requires the viewing of the entire motion picture – repeatedly from semester to semester – then the argument favoring fair use is diminished. The proper choice would be to secure license to show the piece if it is intended to be a continued part of the course. It is technically permissible to show streaming motion pictures via digital networks if the proper security is in place, however how the motion picture is digitally uploaded into the server may be the prohibitive factor in the equation as most DVDs now contain security features (anti-circumvention).
6) I have created a mash-up using clips from motion pictures, television, You Tube, and other web content. I want to put several copies of the DVD in the library for students as well as post it to my web page.
Answer:
Moving motion picture or television clips should not be used outside the traditional classroom (i.e., posted to BBV, the internet, etc.). After reviewing other content for Fair Use, a DVD can be placed on reserve in the library – restricted only to students of the class – and should be removed upon completion of the course. If your webpage is open to viewing by the public, you may not publish the content in an open forum.
7) I am using a very small segment of a sound recording to create a new sampling. Because the segment is fewer than 20 seconds, I’m okay, right? (Bridgeport Music v. Dimension Films 410 F.3d 792 (6th Cir. 2004)).
Answer:
Generally, whether or not a portion of a sound recording can be used depends on its original form and intended purpose for the new sampling’s use. The Bridgeport case is complex and its legal interpretation given specific facts should be directed to the Office of Legal Services.
8) Can I post a copy of the digital recording of a guest speaker online for students using aBBV, bPortal, cWeb? The speaker gave us permission to record the lecture.
Answer:
Once a speaker’s lecture is recorded, it is considered “fixed” in tangible form and is subject to copyright protection. Remember that copyright protection is vested in the author not the person who fixed the work. In this instance, the guest speaker would be the copyright owner. Although the speaker gave permission to record the lecture, you must also seek permission to present the work in BBV, Portal or on the Web.