Please excuse the treatise, but there are a few things I wish to comment on!
The TEACH Act (17 USC Section 110(2)) and fair use (17 USC Section 107) are two different statutes. Keep them separate! If you're going to apply fair use to a situation then work through the four factors found in Section 107. If you decide to consider the TEACH Act then work point-by-point through the requirements found in Section 110(2). Don’t try applying a court ruling on fair use to the application of the TEACH Act, and know that the compliance requirements of the TEACH Act have no bearing on fair use. Know all your options! Kevin Smith and Lisa Macklin have developed a wonderful “Framework for Analyzing any U.S. Copyright Problem” that librarians can use to work through copyright issues: http://lib.calpoly.edu/wp-content/uploads/2015/08/copyright_five_questions.pdf. Read it through and see if it can help you in making a decision with this particular situation. If you decide to utilize the TEACH Act… Types of Works Chris and Peter are right. The TEACH Act in no way precludes the use of feature films or fictional works. If you read Section 110(2) you'll see that mentions "non-dramatic literary or musical works" and "any other works." It doesn’t get any more specific than that. Amount You Can Use If you’re using "non-dramatic literary or musical works" Section 110(2) states that you may make a “performance” of it. Most copyright experts say this means you can share the whole thing with students. For everything that falls into the “any other works” category, Section 110(2) states that you can use “reasonable and limited portions” of it. Unfortunately the U.S. Copyright Act does not provide us with a definition of what a “reasonable and limited” portion of a work is, and as no case law has been settled on this issue (at least that I am aware of, if I’m wrong on this please let me know!) it is left to each user to make the most thoughtful decision they can when applying the TEACH Act. Watch Those Words! Performances and displays are two different things! Section 101 of the US Copyright Act provides definitions for both of these terms. In regards to the TEACH Act, Section 110(2) states that instructors may make a "display" of a work in "an amount comparable to that which is typically displayed in the course of a live classroom session." According to Section 101 a "display" can include showing a “television image” or, “in the case of a motion picture or other audiovisual work” nonsequential images (e.g., frames/stills). Performing an audiovisual or motion picture work usually involves hitting “play” on a device and watching the images move in sequence. Make sure you select the correct category for your situation! For example, say I'm teaching an online art history class. For my lesson on Frida Kahlo I want to show students images of Frida's most famous paintings and have them watch the movie Frida (2002). Under the TEACH Act I could share with my online students the same number of images that I normally show to students when I'm teaching the class in a face-to-face setting. For the movie, under the TEACH Act I could share "reasonable and limited" portions of it. Best, Carla Assistant Professor Faculty Director of Access Services and Scholarly Communications Kraemer Family Library The University of Colorado at Colorado Springs 719-255-3908<tel:719-255-3908> From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Andrew Horbal Sent: Wednesday, May 18, 2016 6:11 AM To: videolib@lists.berkeley.edu Subject: [Videolib] streaming rights for TV series? Hi Jessica, Many, if not most, of the questions you pose are answered in Butler's article. As my final word in this discussion, here's a brief summary of what I said yesterday: the law is not settled on this issue, and there is room for reasonable people to disagree about whether or not a use like the one described by Maureen requires a license. Andy On Wed, May 18, 2016 at 3:56 AM, Jessica Rosner <maddux2...@gmail.com<mailto:maddux2...@gmail.com>> wrote: > > I honestly tried to read through the article when first posted but could not > really get through it, however I got the gist when in fact I was told at ALA > yeas ago (ironically I now recall it was Brandon Butler not Peter Jaszi who > said that) that there was no need to license CITIZEN KANE as any film > released in theaters was made "transformed" by being used in a class. > > So a few questions and citations > > If this is true why would schools be spending millions licensing from Swank, > Kanopy and other, why ask who owns The Bicycle thief or any other film? Just > digitize and stream it for classes. Why would there ever have been copyright > disputes and special laws governing "dramatic" works in classes if merely > using them in classes was a magic bullet that transformed them so that they > could use entire films?The Face to Face act and the limitation on dramatic > works in The TEACH Act were clearly a waste of time by lawmakers who did not > understand this. > > How does going from entertainment to educational use exempt these > "transformative works" from the other elements of "fair use " in particular > the amount used and the financial effect on the rights holder? Again the > history of both copyright cases and copyright law is that creative works are > afforded MORE protection not less. > > Why would film or visual works be different from written works and thus why > would schools not be able to digitize and upload any novels. plays etc that > will be used for classes if these works made for entertainment are now > transformed for education? > > The LOC/DMCA ruling was exactly on point and I was naive enough to think this > would actually help settle things. During the rule making process which > Congress tasks the Library of Congress to do, numerous groups submitted > various documents and testimony arguing for broader leeway in breaking > encryption which the DMCA would otherwise make illegal. The LOC granted > numerous exemptions including vast widening for academic use as well as non > academic use of basically limited portions of works. Various people > representing the academic community argued strenuously that for academic use > they should be entitled to break encryption for entire works, I don't know if > the "works made for entertainment are automatically transformed by being used > in a class" argument was specifically made but if not why not? As noted the > library flat out rejected the request to allow entire works even on password > protected educational systems saying it had no basis in fact or law so not > sure how much clearer and on point you can get. > > > Basically you have a bizarre theory that somehow works made for > commercial/entertainment use can be used in their entirety because the act > of using them in classes is so transformative as to make any other > limitations irrelevant. > > I thus assume there will no longer be any need for schools to spend money > licensing any theatrically films shown in theaters or buying books. plays > sold for consumption to the public beyond a single copy needed to be > digitized and used on password protected systems for classes. I also assume > universities will announce this "best practice" and make studios and > publishers aware of their actions. > > > On Tue, May 17, 2016 at 3:20 PM, Andrew Horbal > <ahor...@umd.edu<mailto:ahor...@umd.edu>> wrote: >> >> The legal basis for such a claim is comprehensively described by Brandon >> Butler in a 48-page article in the most recent issue of the Connecticut Law >> Review called "Transformative Teaching and Educational Fair Use After >> Georgia State." He has summarized the highlights on his blog here: >> http://brandonbutler.info/post/112054748430/transformative-teaching-and-educational-fair-use. >> Neither the Google Books case, the GSU case, nor the triennial DMCA >> exemptions directly address the question of whether or not streaming a >> full-length film to students through a password-protected CMS is a fair use, >> so it is disingenuous to imply that the matter has been decided one way or >> the other. Jessica may not agree with it, but there is a legal argument for >> why this sort of activity should be considered a fair use, and until it's >> tried in court, it will largely be up to individuals to decide for >> themselves what they think. Hopefully with the advice of their college or >> university's legal counsel, of course! >> For the record, I agree with you that a novel like Catcher in the Rye should >> logically be treated the same as a fictional film like Citizen Kane >> according to this argument. >> Andy >> On Tue, May 17, 2016 at 2:54 PM, Jessica Rosner >> <maddux2...@gmail.com<mailto:maddux2...@gmail.com>> wrote: >>> >>> I have heard this before ( at ALA conference among other places) and it is >>> an absurd argument. In fact when I asked the person ( I think Peter Jaszi >>> but not sure) claiming that using a work intended for "entertainment" for >>> "educational purposes" mean you could stream the entire work ( in this >>> case CITIZEN KANE) without any license or permission also applied to >>> digitizing and streaming CATCHER ON THE RYE also written for >>> "entertainment" he dodged it and claimed "that was an interesting question" >>> In fact the claim is literally 180% from established copyright law that >>> "creative" works enjoy far greater protection than factual works and that >>> is one of the reasons "transformative" was not an issue with GSU since >>> those were not largely creative works.If one accepted this insane theory >>> then you would never need to license any theatrical film for streaming and >>> you could digitize and stream any novel or short story ever written which >>> again is exactly the opposite of the history of copyright law which gives >>> greater protection to works of fiction. The law is very clear in Google >>> Books, GSU and LOC DMCA guidelines as opposed to "best practices of an >>> organization with a vested interest ( sorry but that is true) and literally >>> no legal basis to make such a claim. >>> >>> Seriously this does not pass the smell test if you claim that any work ( >>> theater, TV, Film, Novel) produced for "entertainment" can be used and >>> copied free of charge for "classroom use" >>> >>> On Tue, May 17, 2016 at 2:35 PM, Andrew Horbal >>> <ahor...@umd.edu<mailto:ahor...@umd.edu>> wrote: >>>> >>>> Hi everybody, >>>> It is worth mentioning as part of this discussion that ACRL's Code of Best >>>> Practices in Fair Use for Academic and Research Libraries states both that >>>> "w]orks intended for consumption as popular entertainment present a case >>>> for transformative repurposing when an instructor uses them (or excerpts >>>> from them) as the objects of commentary and criticism, or for purposes of >>>> illustration" and that “it will not infrequently be the case that access >>>> to the entire work (e.g., an illustrative song in a class on the history >>>> of popular music) will be necessary to fulfill the instructor’s >>>> pedagogical purpose" (p. 13). >>>> In her GSU decision, Judge Orinda Evans identifies the course reserves >>>> program at issue as being nontransformative. If one accepts the argument >>>> in the ACRL Code of Best Practices, though, the use described by Maureen >>>> is transformative. Thus, the percentage standards mentioned by Jessica >>>> wouldn't apply. For those who are interested, I wrote more about how the >>>> GSU decision might apply to online media reserves programs for a blog I >>>> edit for CCUMC here: https://ccumc.site-ym.com/page/GA_State_Decision. >>>> Andy >>>> On Tue, May 17, 2016 at 2:08 PM, Griest, Bryan >>>> <bgri...@glendaleca.gov<mailto:bgri...@glendaleca.gov>> wrote: >>>>> >>>>> I can easily see an analysis of a series where a total run is “the >>>>> work”—think of a season of “The Wire”, for example—and one could indeed >>>>> make a logical case as showing one ep being “fair use.” I would be less >>>>> likely to see an ep of something much more episodic like “AITF” in those >>>>> terms, to be sure. >>>>> >>>>> >>>>> >>>>> From: >>>>> videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> >>>>> >>>>> [mailto:videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>] >>>>> On Behalf Of Jessica Rosner >>>>> Sent: Tuesday, May 17, 2016 11:03 AM >>>>> >>>>> To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> >>>>> Subject: Re: [Videolib] streaming rights for TV series? >>>>> >>>>> >>>>> >>>>> I doubt that would fly as each episode is totally self contained. Again >>>>> in GSU case court rejected about 15% of the total for not being "fair >>>>> use" and claiming a full episode is "fair use" would be a really high >>>>> burden. ALL IN THE FAMILY ran for like a decade so why not claim one >>>>> whole season is "fair use"? >>>>> >>>>> Each issue of a magazine is only one of hundreds if the not thousands so >>>>> again same question. I don't think is any kind of close call. >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> On Tue, May 17, 2016 at 1:54 PM, Griest, Bryan >>>>> <bgri...@glendaleca.gov<mailto:bgri...@glendaleca.gov>> wrote: >>>>> >>>>> My guess is that the definition of “portion of the work” is what is being >>>>> debated here. The professor probably sees the entire run of the series as >>>>> “the work” and that therefore one ep is a small portion. >>>>> >>>>> >>>>> >>>>> From: >>>>> videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> >>>>> >>>>> [mailto:videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>] >>>>> On Behalf Of Jessica Rosner >>>>> Sent: Tuesday, May 17, 2016 10:51 AM >>>>> To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> >>>>> Subject: Re: [Videolib] streaming rights for TV series? >>>>> >>>>> >>>>> >>>>> Yes indeed digitizing and streaming a complete episode would violate >>>>> copyright law. This is not if you will excuse the pun an "academic" >>>>> question, there are two recent Federal Court rulings and recent ruling by >>>>> Library of Congress governing the Digital Millennium Copyright act. In >>>>> both Google Books and Georgia State cases which were hailed as huge wins >>>>> for educational institutions the rulings were very specific that only >>>>> portions of longer works could be considered "fair use". In Google the >>>>> court clearly stated that because only a portion of the work was >>>>> accessible , scanning the entire work did not violate "fair use'. GSU was >>>>> even clearer. While the court ruled that the majority of the works were >>>>> indeed "fair use" it also ruled that 7 of 48 were NOT "fair use' either >>>>> because they used too much material or used the heart of the work. Also >>>>> long forgotten is that when the case was originally filed GSU had been >>>>> digitizing and uploading complete works but they ceased immediately after >>>>> the case was filed. >>>>> >>>>> When the DMCA came up for review by the Library of Congress this past >>>>> November, many restrictions were removed in terms of who could break >>>>> encryption and for what purpose but a request by academic institutions to >>>>> be able to digitize and stream entire works was flatly rejected with the >>>>> following wording >>>>> " Audiovisual works, for broad-based space-shifting and format-shifting >>>>> (declined due to lack of legal and factual support for exemption)" >>>>> >>>>> Not sure if you can get much clearer than that. I think saying one >>>>> complete episode of a TV show does not violate "fair use" considering >>>>> the above is simply not accurate >>>>> >>>>> The larger issue though is that if you include TV, feature films, >>>>> educational films and other types of AV there are likely millions of >>>>> works that are simply not currently available for classroom streaming. A >>>>> fairly large chunk may be available through commercial sites but an even >>>>> bigger number are simply unavailable for streaming and many may either be >>>>> out of print or never have been released on any format other than film. >>>>> The reasons are various, rights disputes, lack or material or the expense >>>>> of making good enough copies, cranky rights holders etc. Instructors >>>>> simply have to look for legal options when material they want is not >>>>> available to stream because bluntly there is no legal right to stream >>>>> anything you want or need. If the titles is available via Netflix, Hulu, >>>>> Amazon or similar I wonder if asking students to pay fo that is any >>>>> different than having them by books for a class ( which I assume even >>>>> online students do) >>>>> >>>>> I understand librarians want to help instructors get what they want but >>>>> it is not always possible. Sometimes you just have to tell them to be >>>>> creative and find either another legal method to view the material or >>>>> substitute something they can get rights for. >>>>> >>>>> Jessica >>>>> >>>>> >>>>> >>>>> On Tue, May 17, 2016 at 11:28 AM, Griest, Bryan >>>>> <bgri...@glendaleca.gov<mailto:bgri...@glendaleca.gov>> wrote: >>>>> >>>>> I imagine our content providers are saying, "Even one episode (if shown >>>>> in its entirety in this manner) violates copyright law." >>>>> >>>>> -----Original Message----- >>>>> From: >>>>> videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> >>>>> >>>>> [mailto:videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>] >>>>> On Behalf Of Maureen Tripp >>>>> Sent: Tuesday, May 17, 2016 7:32 AM >>>>> To: Videolib@lists.berkeley.edu<mailto:Videolib@lists.berkeley.edu> >>>>> Subject: [Videolib] streaming rights for TV series? >>>>> >>>>> Would like some feedback on the following scenario: The complete first >>>>> season of All in the Family is part of the library's media collection. A >>>>> TV writing faculty member wants to show a single episode to students >>>>> enrolled in an online course. The faculty member would borrow the DVD >>>>> from the Library, take it to media/instructional services and ask that >>>>> it be digitized and uploaded to an internal streaming service so that it >>>>> could be streamed via a course management system. >>>>> >>>>> However, if this TV writing faculty member wants to stream more than one >>>>> episode, then the fair use analysis would weigh against fair use, and >>>>> they would need to seek streaming rights. >>>>> >>>>> And speaking of streaming rights for TV series, does anyone have any tips >>>>> on how to proceed? >>>>> Thank you, Collectively Wise Ones. >>>>> Maureen >>>>> >>>>> VIDEOLIB is intended to encourage the broad and lively discussion of >>>>> issues relating to the selection, evaluation, acquisition,bibliographic >>>>> control, preservation, and use of current and evolving video formats in >>>>> libraries and related institutions. It is hoped that the list will serve >>>>> as an effective working tool for video librarians, as well as a channel >>>>> of communication between libraries,educational institutions, and video >>>>> producers and distributors. >>>>> >>>>> VIDEOLIB is intended to encourage the broad and lively discussion of >>>>> issues relating to the selection, evaluation, acquisition,bibliographic >>>>> control, preservation, and use of current and evolving video formats in >>>>> libraries and related institutions. It is hoped that the list will serve >>>>> as an effective working tool for video librarians, as well as a channel >>>>> of communication between libraries,educational institutions, and video >>>>> producers and distributors. >>>>> >>>>> >>>>> >>>>> -- >>>>> >>>>> Jessica Rosner >>>>> Media Consultant >>>>> 224-545-3897 (cell) >>>>> 212-627-1785 (land line) >>>>> jessicapros...@gmail.com<mailto:jessicapros...@gmail.com> >>>>> >>>>> VIDEOLIB is intended to encourage the broad and lively discussion of >>>>> issues relating to the selection, evaluation, acquisition,bibliographic >>>>> control, preservation, and use of current and evolving video formats in >>>>> libraries and related institutions. It is hoped that the list will serve >>>>> as an effective working tool for video librarians, as well as a channel >>>>> of communication between libraries,educational institutions, and video >>>>> producers and distributors. >>>>> >>>>> >>>>> >>>>> VIDEOLIB is intended to encourage the broad and lively discussion of >>>>> issues relating to the selection, evaluation, acquisition,bibliographic >>>>> control, preservation, and use of current and evolving video formats in >>>>> libraries and related institutions. It is hoped that the list will serve >>>>> as an effective working tool for video librarians, as well as a channel >>>>> of communication between libraries,educational institutions, and video >>>>> producers and distributors. >>>>> >>>> >>>> >>>> >>>> -- >>>> Andrew Horbal >>>> >>>> Head of Learning Commons >>>> >>>> 1101 McKeldin Library >>>> >>>> 7649 Library Ln. >>>> >>>> University of Maryland >>>> >>>> College Park, MD 20742 >>>> >>>> (301) 405-9227 >>>> >>>> ahor...@umd.edu<mailto:ahor...@umd.edu> >>>> >>>> VIDEOLIB is intended to encourage the broad and lively discussion of >>>> issues relating to the selection, evaluation, acquisition,bibliographic >>>> control, preservation, and use of current and evolving video formats in >>>> libraries and related institutions. It is hoped that the list will serve >>>> as an effective working tool for video librarians, as well as a channel of >>>> communication between libraries,educational institutions, and video >>>> producers and distributors. >>>> >>> >>> >>> VIDEOLIB is intended to encourage the broad and lively discussion of issues >>> relating to the selection, evaluation, acquisition,bibliographic control, >>> preservation, and use of current and evolving video formats in libraries >>> and related institutions. It is hoped that the list will serve as an >>> effective working tool for video librarians, as well as a channel of >>> communication between libraries,educational institutions, and video >>> producers and distributors. >>> >> >> >> >> -- >> Andrew Horbal >> >> Head of Learning Commons >> >> 1101 McKeldin Library >> >> 7649 Library Ln. >> >> University of Maryland >> >> College Park, MD 20742 >> >> (301) 405-9227 >> >> ahor...@umd.edu<mailto:ahor...@umd.edu> >> >> VIDEOLIB is intended to encourage the broad and lively discussion of issues >> relating to the selection, evaluation, acquisition,bibliographic control, >> preservation, and use of current and evolving video formats in libraries and >> related institutions. It is hoped that the list will serve as an effective >> working tool for video librarians, as well as a channel of communication >> between libraries,educational institutions, and video producers and >> distributors. >> > > > VIDEOLIB is intended to encourage the broad and lively discussion of issues > relating to the selection, evaluation, acquisition,bibliographic control, > preservation, and use of current and evolving video formats in libraries and > related institutions. It is hoped that the list will serve as an effective > working tool for video librarians, as well as a channel of communication > between libraries,educational institutions, and video producers and > distributors. > -- Andrew Horbal Head of Learning Commons 1101 McKeldin Library 7649 Library Ln. University of Maryland College Park, MD 20742 (301) 405-9227 ahor...@umd.edu<mailto:ahor...@umd.edu> -- Andrew Horbal Head of Learning Commons 1101 McKeldin Library 7649 Library Ln. University of Maryland College Park, MD 20742 (301) 405-9227 ahor...@umd.edu<mailto:ahor...@umd.edu>
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
