Are You Breaking the Law?
A recent Quality Educational Data (QED) study showed that video streaming is the number one technology being evaluated by technology coordinators this fall. While the benefits of video streaming in the classroom are numerous, this new technology requires education regarding copyright laws related to the use of video in the classroom-for publishers and media centers alike. We need to work together to dispel the myths about copyright guidelines. Publishers have a duty to inform product buyers of their subscription license in exact terms, as well as protecting content producers through Digital Rights Management. Media professionals have a duty to protect their schools from copyright infringement by making sure all staff is following the Fair Use Guidelines, the TEACH Act, the Digital Millennium Copyright Act, and most importantly, the subscription licenses they hold.
Licenses. While Media professionals are not necessarily accountable for the copyright infringements made by colleagues, they are regarded as the copyright experts. It is important to read publisher license agreements. Every license is written with a unique set of rules that all end-users must follow. The license is a binding contract between the school and the copyright owner. Most importantly, the license may override specific copyright laws. Publishers, who may or may not be the copyright owner, consider the needs of all parties when writing license agreements. They take into account teachers', students' and the copyright owners' needs and concerns, as well as the copyright laws. Some video streaming licenses ask that end-users maintain the intent of the videos; therefore, no video editing software can be used. However, end-users may freeze frame a video and use the frame for instructional purposes in the classroom. And in some cases, displaying the video content on the Internet is acceptable as long as the Internet site is protected via firewall, realm, or username and password.
Fair Use Guidelines. According to Simonson, Smaldino, Albright, and Zvacek (2003), one of the myths concerning copyright is that "the doctrine of Fair Use means that copyrighted materials can be used in an educational setting without permission." Ignorance is not bliss when it concerns copyright. How many times have you heard others discuss copying and sharing print materials, videotapes, audiotapes, software, and downloaded materials? Perhaps showing videotapes to their class on Friday afternoons as a performance reward or copying videotape clips to a CD to use as curriculum enhancement? Even when used for educational purposes, these activities may violate copyright law.
U.S. Copyright Law, Title 17, Chapter 1, Section 107 provides guidelines for Fair Use:
"...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 criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." There are four characteristics that media professionals must identify in order to determine if there might be copyright infringement:
(1) the purpose and character of 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 copyrighted work as a whole, and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Streaming video is not much different than using a VHS player and television monitor in that video is publicly distributed through a computer monitor. Where the difference lies is in the delivery format-the video is digitally streamed and there is no physical file saved. There is nothing archived again for later use, with the exception that buffer files might be stored in the cache on that computer or on a caching server. Unless the copyright owner has given special permissions, digital video may only be used for instructional purposes in the confines of a classroom, library, or auditorium. Instructional purposes would include research, demonstration, comment, criticism, and news reporting (Lutkzer & Rapp, 2002). The video may not be used in a public performance, whether or not an admission is charged; content may not be redistributed, or altered in any way. Altering includes removing sounds, adding or changing images, or using the video in video editing software. Check the subscription license agreement. The owner of the video may or may not give permission for using the digital video in web pages or other multimedia projects and/or for distance learning.
The TEACH Act. The "Technology, Education and Copyright Harmonization Act," also known as the TEACH Act was passed in November, 2002. The purpose of this Act is to support changing trends in teaching- distance learning. You may have noticed that some free and subscription-streaming services only allow their content to be streamed. The reasons for this are many, but one reason is to have control over the distribution of the content. There are other companies who provide the ability to download videos. There are several advantages to this, but there are copyright implications and questions surrounding archiving and redistribution rights such as, can a copy of a digital video be archived for classroom use? Well, it depends. Review the license. According to an interpretation of the TEACH Act by Kenneth Crews, professor of law at the Indiana University School of Law, Indianapolis, the new TEACH Act allows one archived copy to be maintained, but it cannot be available on the Internet once a course is finished (Crews, 2002). In some instances, the license may give a school district greater flexibility than the TEACH Act.
Digital Rights Management (DRM) Software. In order to address the needs of teachers and students to use video clips in a variety of ways through PowerPoint lessons, projects, electronic reports, and other such applications, it is necessary to allow for the downloading and storage of video. Some schools and media centers do not have sufficient bandwidth to allow for acceptable video streaming quality. Applications that provide downloading at night when school is not in session eliminates the bandwidth issue. However, video streaming publishers will soon have another tool at their disposal to protect copyrighted material. A Digital Rights Management (DRM) system similar to the Microsoft Windows Media(tm) Rights Manager will be available as early as fall 2003. Here is an example of how a DRM system will work. If a subscription is not renewed, the DRM system is activated when the subscription license term expires. The DRM will not allow the video to play unless the subscription is renewed. This protects the copyright holder while also protecting the schools from unintentionally committing copyright violations.
Educating Teachers and Students About Copyright: Resources
KOCE's Hall Davidson's Copyright Quiz for Teachers link.
Copyright Website link
University of Texas Copyright and Fair Use Information link and link
A Teacher's Guide to Fair Use and Copyright link
Conclusion. Obtaining educational video content is easier than ever before-with this ease and flexibility comes additional responsibility. With the passage of the DMCA and the subsequent TEACH Act, legislators are struggling to provide timely legal protection, constraints, and boundaries for content publishers as well as consumers. While Fair Use allows educators some freedom to use materials in classrooms without permission, there are confines within the Fair Use Guidelines. Educating yourself and your colleagues about copyright and Fair Use will help save time and worry for all parties involved. The application of copyright and Fair Use will also demonstrate support for creative artists' work by providing them the security of knowing their work will be protected-allowing them to create more wonderful productions for our classrooms.
Please be aware that the information contained in this article is not legal advice. You should consult your school district's attorney if you have legal questions that relate to the issues addressed in this article.
Borland, J. Napster's bankruptcy road nears end. Cnet News.com. August
28, 2002. Retrieved from link
Copyright Angst. Online Newshour. April 24, 2003. Retrieved from link
Crews, K. New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act. American Library Association. Retrieved from link
Heinich, R., Molenda, M., Russell, J., & Smaldino, S. (1999). Instructional Media and Technologies for Learning. Merrill Prentice Hall, Upper Saddle River, New Jersey
Leeds, J. California; Online Music Sales Dive from 2001. The Los Angeles Times. Nov 4, 2002. Pg. C.2 Retrieved from link
Lutzker, A. & Rapp, A. Digital Battlegrounds: The Streaming Frontier. AIME News. Summer, 2002. 16, 2.
Missouri Department of Elementary and Secondary Education (2000). Copyright Applies to Everyone. Available on the World Wide Web link October 27, 2002.
Simonson, M., Smaldino, S., Albright, M., & Zvacek, S. (2003). Teaching and Learning at a Distance. Merrill Prentice Hall, Upper Saddle River, New Jersey.
Switzer, J. & Switzer, R. 1994. Copyright Question: Using Audiovisual Works in a
Satellite-Delivered Program. Retrieved on August 5, 2003 from link.
Templeton, B. A Brief Intro to Copyright. Retrieved from link October 27, 2002.
Lloyd L. Rich is a Denver attorney specializing in publishing, intellectual property and Internet law and can be reached at this firstname.lastname@example.org.
Linda Chiles is the Director of the Cooperating School Districts in St. Louis, MO. She has been educating teachers for several years regarding Copyright and Fair Use and can be reached at email@example.com.
Nancy Riddle is the Director of Education Trainings at United Learning and she can be reached at firstname.lastname@example.org.