You are on an archived page which may have obsolete content.
Please go to www.ihets.org for up to date content

IMPORTANT NOTE:  With the passing of the Technology, Education and Copyright Harmonization (TEACH) Act, this document is no longer current.  For an overview of the new legislation and its significance for higher education, see New Copyright Law for Distance Education:The Meaning and Importance of the TEACH Act, also by Kenneth Crews.

Lawful Uses of Protected Works

By Kenneth D. Crews

Associate Professor of Law and of
Library and Information Science
Director, Copyright Management Center
Indiana University-Purdue University at Indianapolis

Instructors utilize a wealth of different materials in the classroom, whether teaching in a face-to-face setting or through distance learning. Many of the materials that teachers use are protected by copyright, and thus copyright law can either clear the opportunity for the desired use, or it can set restrictions. Faculty members are most likely familiar with copyright as a limit on the reproduction or distribution of works. But the law also secures to the copyright owner exclusive rights of "public display" and "public performance." The showing of a picture to students can be construed as a "public display." The playing of a videotape in class can be a "public performance." Although the law gives such rights to the copyright owner, the statutes also exempt some performances and displays for teaching purposes, thereby allowing the uses to occur in class or through distance education without fear of infringement and without need to seek permission. The application of these rules often depends on adhering to some complex conditions.

Section 110 of the Copyright Act of 1976 specifically addresses the use of copyrighted works in the conduct of "distance learning" instruction. The language of the statute is sometimes convoluted, but the provision nevertheless offers relatively detailed guidance on the types of materials that may or may not be used. As you read this overview of the law, keep in mind the observation of one copyright expert: "You need to check your logic at the door." We can usually think of a justification for each part, but sometimes the reasoning and the restrictions can be befuddling.

In this context, the Copyright Act deals with the "display" and "performance" of copyrighted works. To display something includes the simple showing of a work, whether it is a picture, a page of text, a book cover, a chart, or other work. To perform something includes to recite, play, or act the work, or to show sequentially images from an audiovisual work, or to make audible the accompanying sounds. Distance learning makes such uses of works whenever a professor shows a chart or picture or a video clip and the images are transmitted to students at other locations.

Begin with the premise that in the traditional face-to-face teaching, nearly all displays and performances are allowed. Section 110(1) allows almost any "performance" or "display" in the nonprofit educational context, when the activities are in the classroom or other similar location.

The "face-to-face" language apparently does not have to be read literally. The report from the House of Representatives, which accompanied passage of the 1976 Act, states:

The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit. However, as long as the instructor and pupils are in the same building or general area, the exemption would extend to the use of devices for amplifying or reproducing sound and for projecting visual images.

This explanation may mean that we can display and perform works through some closed-circuit system that delivers them to other locations on campus-a common need for popular classes, where all students are unable to meet in one room. That capability is crucial for campuses that lack large auditoriums for basic and popular courses.

Section 110(2) allows for the "transmission" of a performance or display, but only within defined limits. The code defines "transmit" to mean a communication of a performance or display "by any device or process whereby images or sounds are received beyond the place from which they are sent" (Section 101). Section 110(2) allows displays of nearly all works, but it confines the allowed performance to a "nondramatic literary or musical work." Here are some examples of allowed and disallowed activities in "transmission" or distance learning:

Allowed:

1. Showing a photograph, or chart, or table, or still from a motion picture. These are "displays" of works.
   
2. Performances of musical works and literary works, but only if they are "nondramatic" works. "Literary works" are defined to encompass "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia. . . ." Motion pictures and videos are specifically excluded from the scope of "literary works." "Musical work" is not defined in the statute.

Not Allowed:

1. Performances of any dramatic work, whether musical or textual.
   
2. Performances of any work that is neither "musical" nor "literary." Hence, all audiovisual works are excluded from the specific right of use in distance learning. AV works include motion pictures, videotapes, and many screen displays from computer programs.

Some Examples:

1. A professor may read from "Moby Dick," but may not show a clip from Gregory Peck's motion picture.
   
2. A professor may read an excerpt from the novel "Witness for the Prosecution" but may not recite lines or create a dramatic performance of the stage play of the same name. The professor may also not show the motion picture.
   
3. Because only nondramatic works qualify, the professor may play a popular song, but not an operatic stage musical work. Some works are both dramatic and nondramatic. "Pinball Wizard" is a popular song and an opera piece. "Hey There" is one of the best-selling popular songs of the early 1950s, but it is also from a Broadway musical. Whether such songs qualify might depend on the context of their use-whether the course is the study of popular music or stage productions-and on the selection of the recording used-whether the recording is from the dramatic work or a popular version.
   
4. The statute alone does not specify whether members of the class may simply recite lines from a dramatic work or make a dramatic reading of a nondramatic work-such as a novel. The House Report from 1976 sheds some light on Congress's intent: "a performer could read a nondramatic literary work aloud under section 110(2), but the copyright owner's permission would be required for him to act it out in dramatic form."

Section 110(2), subparts (A) through (C) set forth requirements for enjoying the benefits of the statute, and most distance learning courses from established colleges and universities should have little trouble qualifying.

Subsection (C)(i) requires that the transmission be "primarily" for "reception in classrooms or similar places normally devoted to instruction. . . ." Indiana institutions should qualify with transmissions via IHETS or any other closed-circuit system that sends the signal to a classroom or other place used as instruction. We do not have to read the language so strictly as to utilize only customary classrooms-we should be able to send the signal to any facility set aside for instruction at that time. The House Report makes explicit that such places may include studios, libraries, and other facilities, as long as they are used for instructional purposes at some designated times. The report makes no mention of an individual's house as a place of instruction, although the report refers frequently to educational television and radio of such a nature that their signals may be received at home. That language would support the argument that the home is increasingly a place "devoted to instruction" for many of our students.

A related issue arises from (C)(ii), which requires that the transmission be "primarily" for students who are unable to attend in the classroom because of their "disabilities or other special circumstances." Why are we offering distance learning programs? If the reason is simply for the ease and convenience of students, that may not be a "special circumstance" which prevents their attendance. If the reason is because students are unable-because of work, family obligations, or personal conditions-to attend class at the appointed time, then we have a good case for using the rights of 110(2). The House Report endorses this view:

Accordingly, the exemption is confined to instructional broadcasting that is an adjunct to the actual classwork of nonprofit schools or is primarily for people who cannot be brought together in classrooms such as preschool children, displaced workers, illiterates, and shut-ins.

There has been some question as to whether or not the language in this section of the bill is intended to include instructional television college credit courses. These telecourses are aimed at undergraduate and graduate students in earnest pursuit of higher educational degrees who are unable to attend daytime classes because of daytime employment, distance from campus, or some other intervening reason. So long as these broadcasts are aimed at regularly enrolled students and conducted by recognized higher educational institutions, the committee believes that they are clearly within the language of section 110(2)(C)(ii). Like night school and correspondence courses before them, these telecourses are fast becoming a valuable adjunct of the normal college curriculum.

Please note that the subparts under (C) are stated in the alternative, with the connector "or," not "and." Thus, for example, if we satisfy (i), we do not need to satisfy (ii).

The statute states that the transmission must be "primarily" for reception by the certain categories of students described above. Closed-circuit systems are able to limit access to the defined groups. But transmission via cable enables other members of the public to view the class and consequently to receive the transmissions of copyrighted works. Does access by non-students reduce the ability of the university to utilize 110(2)? Again, according to the House Report:

In all three cases, the instructional transmission need only be made "primarily" rather than "solely" to the specified recipients to be exempt. Thus, the transmission could still be exempt even though it is capable of reception by the public at large. Conversely, it would not be regarded as made "primarily" for one of the required groups of recipients if the principal purpose behind the transmission is reception by the public at large, even if it is cast in the form of instruction and is also received in classrooms. Factors to consider in determining the "primary" purpose of a program would include its subject matter, content, and the time of its transmission.

Hence, we can broadcast via cable, but the content and other circumstances should be clearly oriented toward creating a learning environment, and not toward making a work of general interest to the cable viewers.

Many universities will use distance-learning facilities to transmit instructional material that may not be part of the regular curriculum. These broadcasts might be continuing education programs or other special offerings. According to the House Report, the rights of Section 110 can still apply:

The concept of "systematic instructional activities" is intended as the general equivalent of "curriculums," but it could be broader in a case such as that of an institution using systematic teaching methods not related to specific course work. A transmission would be a regular part of these activities if it is in accordance with the pattern of teaching established by the governmental body or institution. The use of commercial facilities, such as those of a cable service, to transmit the performance or display, would not affect the exemption as long as the actual performance or display was for nonprofit purposes.

Most universities will want to make copies of the transmission, and those copies are commonly used by students who missed a class and by faculty who want to review and improve their teaching methods. The copies are also used for further broadcast by the originating institution, and by other organizations that also qualify for the Section 110(2) opportunities.

Section 112(b) expressly allows a nonprofit institution that makes a transmission containing a display or performance allowed under 110(2) to make no more than thirty copies of such transmission, if: (1) no further copies are made from those copies, and (2) those copies are destroyed within seven years after the date of the first transmission, except one copy may be preserved for archival purposes.

Keep in mind that this provision applies only to Section 110(2) situations: transmission that include only displays of works or performances of nondramatic literary or musical works.

If the transmission does not include anyone else's copyrighted materials, then the right to duplicate the tapes will be determined solely by the university and the individual faculty member. If the transmission includes works beyond those allowed under Section 110(2), the right to make copies will depend on either a fair use analysis or a license agreement with the owner of the copyright to the included works.

If Section 112(b) applies, the House Report details that the thirty copies may be used for future transmissions by the original source, or they may be exchanged with other broadcasters for their transmission.

A practical procedure for implementing this provision would be to number the copies of the tapes in succession from 1 to 30. Each tape should be labeled to indicate its place of origin and date of first transmission. The label should, of course, include other information about the tape's content and copyright status.

What if you want to include an AV work in your distance learning broadcast? What if you want to make more than thirty copies, or keep them for longer than seven years? The Copyright Act gives no reliable alternatives, although the most probable course of action would take one of the following forms:

1. Apply "fair use" to the situation. Section 107 of the Copyright Act sets forth the general framework of fair use, and it offers only four general and vague factors to apply for determining whether or not an activity is allowable or is an infringement. The law is utterly without specifics. Neither the fair use statute nor the court decisions addresses any situation related to distance education with much certainty. Deciphering fair use is beyond the scope of this overview, but any fair use determination is inherently a difficult judgement call.
   
2. Secure the copyright owner's permission. Anytime you resolve that your intended use exceeds the rights allowed to the public under the copyright law, one recourse is to obtain permission from the copyright owner. This overview will not detail that process, but the request for permission should carefully describe all anticipated uses of the work-be sure the permission fills your actual needs.
   
3. Purchase the needed materials under favorable terms that allow use in distance learning. Many copyrighted works are subject to a "license." That agreement is both a restriction on use, and it is an opportunity to negotiate provisions that serve your needs. For example, you might include in the order form for the purchase of commercial videotapes a provision allowing distance use.
   
4. Seek alternatives to your intended use. A cinema instructor can sometimes replace clips with "stills" from a movie. In so doing, the instructor has replaced a "performance" with a lawfully permitted "display." If an AV work may not be shown at all through distance education, then several copies may be purchased and placed on reserve at various locations for student viewing.

These alternatives may not be ideal, and they may at times prove costly or cumbersome, but pursuing these or other alternatives may be the best resolution when you encounter limitations raised under the current Copyright Act.

References

Sections of the Copyright Act may be found in Title 17 of the United
States Code.

The full citation to the "House Report" is as follows: U.S. Congress,
House Committee on the Judiciary, Copyright Law Revision: H. Rept.
94-1476 on S. 22, 94th Cong., 2d Sess., 1976.

Copyright 1995, Trustees of Indiana University

For further information, please contact the Copyright Management
Center on the IUPUI campus (317) 274-4400

---