MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The short answer to this question is: IF the video is only going to include the YouTube animal clips, and IF it is only going to be used in the school for instructional purposes, the proposed use is fine, since copyright section 110(1)[1] allows schools to play videos in class if the topic is related to a class, and YouTube doesn't limit use of its service to "personal" uses.

Now, I say "mostly" fine because, technically, the combination of the YouTube content into another video compilation could be considered the creation of a "derivative work" (like a sequel or a mash-up), instead of just "performing" (playing) the video as allowed by law.  But if the copy truly isn't leaving school grounds, and the "performance" is to promote a reading program in the classroom, and the footage really is just being swapping in and out with interviews with school staff, it would be a stretch for anyone to claim infringement.

With respect to the other issue that I detect in the question--would "School X" have a claim against the school for pinching its idea? I don't think so.  The project you describe is sufficiently different from theirs; after all, they got their author for their endeavor, and your school is focusing on local talent.  You can't copyright an idea[2]...just its expression.

When it comes to a school generating original educational content inspired by others, for use only within that school, the key is to model the type of respect for others that educators want to instill in their students, while taking full advantage of the protections educators have under the law.

In this case, "Respect" means not using pirated copies when a school plays instructional movies, and not using more content than the school is entitled to when the instruction is online.  "Protections," among other things, means that for in-person instruction, videos can be played, and for online instruction, parts of videos can be played, so long as the performance is from legitimate copies.[3]

[NOTE: For schools that want to up their game and start producing original content they will share with the world: this answer is not for you.  If any school out there is thinking of becoming an author/producer/provider of educational materials, don't rely on this answer, and develop a business plan that includes how to respect and protect IP.]

And finally, I have to say: thank you for this question.  First, it got me onto Animoto, which I am totally going to check out.[4]  And second: I love PARP.  Some of my fondest circa-1980 memories are of filling out my PARP form with my folks, after some time reading together on the couch,[5] so this question made me smile.  It's good to see the program is going strong, and the hamsters of the world are showing us how to cope with the ups and downs of life.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation[1].

2.  Copying protected works is sometimes allowed under "fair use."[2]  Our school's fair use policy is posted INSERT.

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the [insert office for disability services] staff, since adaptive copies have special rules,[3] and we want to help you (or a person you are assisting) exercise your rights.

4.   Under the TEACH Act,[4] you may display or perform certain copyright-protected content in class, but that does not allow you to make additional copies for in-class or online instruction.  Please don't make copies that exceed the permission obtained by the school (unless you use our policy to determine it is fair use).

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The TEACH Act was adopted in 2002 to enable the “digital transmission” of otherwise copyright-protected content for educational purposes. 

Schools meeting the Act’s requirements[1] can stream readings of poetry, images of paintings, and lines of computer coding, without fear of infringement claims.  This allows regular teaching activities—like analyzing a poem, assessing a painting, or teaching HTML--to happen online, without fear that the duplication or transmission of the copyright-protected content will bring a lawsuit. 

The TEACH Act positions online learning to use content as it would be used in a traditional classroom—as well as to novel and innovative things via distance learning technology.

But there are a few aspects of the “traditional classroom” the TEACH Act cannot replicate, and a critical one is: watching entire movies.

Per Section 110(1) of the Copyright Act, entire movies can be shown during an in-person class (if they are part of the curriculum…the law doesn’t allow a trigonometry class to kick back with “Wonder Woman” after finals are shown, unless they are calculating the angles of the bullets bouncing off her bracers). 

But there is no equivalent exception in the TEACH Act for streaming an entire video as part of an online course. 

In fact, in very plain language, the Section 110(2) of the Copyright Act states that only a “portion” of a film can be shown.  As stated right here:

…the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission…. [emphasis added].

Okay, I admit it: it’s possible the “very plain language” is only plain to lawyers (and copyright scholars—many of whom are librarians--who leave some lawyers in the dust on these issues). 

The “House Report” [2] below, explains how this language means performance of an entire movie is not allowed:

The exemption for instructional broadcasting provided by section 110(2) would apply only to “performance of a nondramatic literary or musical work or display of a work.” Thus, the copyright owner’s permission would be required for the performance on educational television or radio of a dramatic work, of a dramatico-musical work such as an opera or musical comedy, or of a motion picture.   [emphasis added]

So what does this mean?  Schools that want to stream entire movies as part of an online course—even if those movies could be shown during an in-person class--should not rely on the TEACH Act as their protection from infringement.[3]

What are the other solutions?

• The institution can obtain a license to stream the movie(s);
• The institution can create a “hybrid” course (part online, part in-person) that shows the movies in a physical class, as authorized by 110(1);
• Students can be required to subscribe to a streaming service or other licensed source of the movies, just like they rent or buy textbooks;
• In some instances, fair use might apply, BUT that should be determined on a movie-by-movie basis and documented very carefully, since simple academic need is generally not a defense to infringement.

Thank you for this question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Reading to kids is one of the best thing we can do for them.  If the law gets in the way of that, there is something wrong with the law!

That said, honoring the rights of authors and illustrators who create stories to charm and educate is one of the best ways we can make sure there is always something new to read. 

And it’s the law.  

The member’s concern is justified; copyright law rewards creativity by empowering rights holders to control how and when their work is duplicated--in this case, “performed”[1].  A reading on “Facebook Live”—no matter how many cute, be-jammied scholars it enriches—could infringe those rights[2]. 

But as the member also suggests, respecting copyright does not need to be the end of the line; there are many ways this type of real-time, remote reading can take place.

Below, please find my “Top 5 Ways for a Teacher to Remotely Read a Bedtime Story to Lots of Kids in Different Places Without Fear of Committing Copyright Infringement.”

1.  When choosing a book to read, select a work in the “public domain”…meaning, the book is no longer protected by copyright.  As of 2019, this means works published before 1924 (in the U.S.) and other select situations.[3]

For example, the “Brothers Grimm” who were writing in the 1800’s, are not suing anymore (nor are their heirs).  Just make sure the publisher hasn’t found a new way to assert the copyright of the copy you read from (a new version, new illustrations and layout, a slightly less sadistic version of the original, etc).

2.  Write your own story.

This one is my favorite.  Who knows?  You might discover you’re the next Eric Carle!

3.  Hold a writing contest amongst the students that includes parental permission to read the entries/winners online. 

This could also bolster interest in the event, since kids could hear their own work read, and see their own pictures online.

4.  Explore making the reading exempt under the TEACH Act (section 110 (2) of the Copyright Act).

The TEACH Act exempts certain digital transmissions of work from the classroom environment.  It has several highly specific requirements, so educators should connect with their institution’s attorney and IT department to see if this option can work for them.  While not the solution for every “good night” reading, with some planning, it could be a way to make online reading sessions a part of a routine curriculum.

And finally…

5.  Explore getting permission from the rights holder!  While not all authors will be in a position to agree, many will say “Yes, of course!” when asked if a teacher can livestream a reading of their book (of course, if you also want to show their book as well as read it, you will need permission from the illustrator, too). 

Reaching out to an author or publisher takes time, but many children’s authors are very accessible.  My high school friend, Grace Lin, is a well-known children’s book author (and recent winner of a Caldecott Honor for “A Big Mooncake for Little Star”).  I reached out to Grace on Facebook to get her take on this issue (and got her permission to share her thoughts). 

For Grace, whose work contains lovely and carefully rendered illustrations, such a request would be about intent and quality.  She said if the reading was more about the not-for-profit reader and audience connecting over her story, and not the video dwelling on the pages (effectively copying them), she would consider giving permission.  On the flip side, Grace felt that serious duplication (with the video dwelling on the pages) could be an unwelcome duplication. 

Like many children’s book authors, Grace is accessible via her website, www.gracelin.com, and I encourage would be night-time-story-readers to reach out to her!

Thank you for this great question.  Copyright is an important law to honor in the educational environment.  But finding ways—lots of ways—to give children an early and deep love of books is an even greater service to the world.  It’s one of the reasons librarians are so important.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The short answer is: no, this scenario is not a “fair use.”

But that’s not the end! “Fair use”—which is found in Section 107 of the Copyright Act—is not the only exception to copyright infringement.

There is another way.  Section 110 of the Copyright Act provides:

[T]he following are not infringements of copyright:

(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made[.] [emphasis added].[1]

In the cold, scary, expensive world of copyright infringement, section 110 is breath of fresh air.  Unlike section 107, which creates a four-factor “fair use” formula so esoteric, you can consult three lawyers and get six opinions, Section 110’s exceptions are well-defined and clear. [2]

So, can a gathering of instructors and students in a theater on a college campus meet these clear 110 requirements?  Yes! 

But.

The problem is, as used in 110, the term “students” is not broad enough to apply to the member’s precise scenario.  While the 110 term “instructors” includes guest lecturers (if their instructional activities remain confined to the class location and syllabus), the 110 term “pupils” is generally regarded as meaning only enrolled members of a class.  [3]  In addition, it is best if the syllabus for the course, whether for credit or a certificate, supports a conclusion that the viewing context really is a class—not recreation (even if it is enlightening recreation) masquerading as academia.  110 is a powerful exception to infringement, but it has its limits.

107 and 110 exceptions to infringement can sometimes get conflated.  Here are some examples of how they do (or do not) apply, using one of my new favorite movies:

1.  “Black Panther” uncut and shown on campus as part of an open-to-all, educational film series about would not be allowed under either fair use or 110.  Any such showing must be licensed.  

2.  “Black Panther” partially evoked in very small, carefully-chosen selections for an open campus forum on “Women in Major Motion Picture Fight Scenes” could be allowed under “fair use,” but film stills and excerpts must be limited to only what is needed to make a point.

And finally…

3. “Black Panther” shown in its entirety to students enrolled in a “Comics and Society” class would be allowed under 17 U.S.C. 110 (1)…so long as the movie genuinely contributes to the substance of the course, is shown only to enrolled students, and the copy they watch is not pirated. 

What’s the take-away?  Educators should apply “fair use” when needed, but remember that section 110(1) creates exceptions to infringement, too.  It’s no vibranium[4], but is a powerful part of an educator’s arsenal.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

• “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
• If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
• The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.