University Counsel
Copyright and Use of Videotapes
Do I need to worry about copyright if I want to use a videotape in my classroom?
Yes, unless the material contained in the videotape is entirely your own creation, you need to consider copyright issues.
What if there is no indication on or in the videotape that the material is copyrighted?
It is essential to understand that copyrights are now automatically conferred by law at the moment the work is "fixed." An infringer may be enjoined from publishing the work even without any formal notice of copyright, i.e., the symbols "©","(c)", "Copr." are not required. However, prior notice and registration with the U.S. Copyright Office are necessary in order to sue an infringer for damages and attorneys fees. The preferred notice is given by affixing the copyright symbol ["©","(c)", "Copr."], date of first publication, and name of owner to the work.
Assuming the material is copyrighted, may I use it without getting the owner's permission?
17 U.S.C. §110(1) expressly permits the use of videotapes for instructional purposes if the following conditions are met:
- The videotape must be shown by the instructor or the instructor's students;
- the instructor and students must be in the same place, i.e., transmissions by television don't qualify under this section of the statute (distance learning activities may be permitted under another section which I will discuss in the next question);
- the activity must be a teaching activity and not for recreation or entertainment;
- the activity must be conducted by a nonprofit educational institution (UNCG qualifies);
- the activity must take place in a classroom or other area used as a classroom for systematic instructional activity (e.g., not the parking deck); and
- the copy of the videotape being shown must have been legally made (not a pirated copy).
What about use of videotapes in distance learning classes?
Because distance learning involves transmission of the material to a place or places beyond the place from where the material is sent, different and far more restrictive rules apply under 17 U.S.C. § 110(2).
- The material presented must be a "nondramatic literary or musical work," Unfortunately, movies and "audiovisual works, including videotapes, are expressly excluded from the definition of literary works.17 U.S.C. § 101. The law only allows individual images from such works to be displayed in a nonsequential manner;
- the performance or display must be a regular part of the systematic instructional activities of the institution (i.e. part of the curriculum);
- the performance or display must be directly related and of material assistance to the teaching content of the transmission; and
- the transmission is made to classrooms or similar places normally devoted to instruction or to persons whose disabilities prevent their attendance in such places.
NOTE: Late last year, Congress amended 17 U.S.C. § 110(2) to allow more freedom in the transmission of audiovisual materials for educational purposes. In order to qualify, colleges and universities must adopt and implement certain policies governing the use of those materials and ensuring secure access. These amendments are known as the TEACH Act. UNCG is working on those policies.
Can I ever show a videotape outside of the classroom such as in a dorm or a lounge?
No, unless you can come within the fair use exception discussed below, but it is highly unlikely that showing anything other than short clips would ever qualify.
May I make a copy of my videotapes for safekeeping?
No, unless you are a library or archives in which case you may make a copy "solely for the purpose of replacement of a copy that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price." 17 U.S.C. § 108.
Does the 'Fair Use' Exception apply to videotapes?
Yes, but its use is limited. Normally, the "Fair Use" exception to the copyright laws, 17 U.S.C. § 107 permits the use of selected portions of books or articles for use in the classroom or for criticism, comment or research. However, 17 U.S.C. 110(1) permits the showing of the whole videotape in the context of face-to-face instruction and, thus, is much broader and more liberal than the "Fair Use" exception. However, if the activity is not face to face classroom teaching, such as in the case of distance learning, the "Fair Use" exception may have some value. As a reminder, that exception allows the use of copyrighted materials without prior permission for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," IF (and this is a very big IF) such use can be considered "fair" when analyzed using the following four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyright ed work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Of these four factors, (3) and (4) seem to get the most emphasis by the Courts, especially the market impact factor.
CAUTION: Posting materials on the internet is a form of copying and makes them available to a vastly larger audience which will increase the adverse market impact logarithmically, i.e. don't do it, without the owner's permission.
As you can see, predicting what will qualify as a "fair use" is, at best, an exercise in uncertainty. In the event of a legal challenge, it will come down to what a particular judge thinks.
I have other questions that you haven't answered.
Please contact Skip Capone, University Counsel, at 334-3067 or caponel@uncg.edu.
No copyright in this article is asserted by the author and it may be freely reproduced without permission.