Copyright Under COVID-19 in Film and Media Studies
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In 2008 the SCMS Statement of Best Practices for Fair Use in Teaching for Film and Media Educators was published in Cinema Journal and was followed two years later with the SCMS Statement of Best Practices for Fair Use in Media Publishing. The 2008 Statement identified two problems:
1) “Film and media educators lack a basic understanding of copyright law, particularly of the framework through which they may make legal, non-infringing uses of another’s work...” and,
2) “a lack of consensus among educators regarding permissible practices and a confusing patchwork of policies, guidelines and actual uses.”
(Cinema Journal, 47:2, Winter 2008, 155-164;155).
Twelve years later these two problems have only partially improved, while the landscape has grown considerably more complex and the need for legislative redress has only risen. A worldwide pandemic and a massive and global shift to online teaching in 2020 have brought into stark relief the wider legal and copyright issues that have been emerging with the accelerating expansion of digital platforms like Netflix, YouTube, Hulu, Disney+ and Peacock. Catalyzed by COVID-19, the increase of streaming sites for media distribution have prompted new questions and problems of access for many faculty and students.
First, COVID has forced us all to consider how we move a pedagogical practice built around in-person learning into the online arena. This also raises important questions about the legal scaffolding that our teaching is built upon; as legal scholar Michael Madison argues elsewhere in this dossier, faculty are “fighting 21st century battles with 18th century tools.” Film and media educators already rip short film clips for teaching purposes, a practice expressly protected in the United States under a “1201” exemption by the Librarian of Congress, named for the provision of the Digital Millennium Copyright Act (DMCA) that permits circumvention in certain instances. For years, many scholars have looked to the statements of best practices developed by Patricia Aufderheide and the Center for Media and Social Impact; today, as we consider the question of whether and how to continue screening media for our online classes, including full-length films, television episodes and games, we must further develop and refine those practices. How have faculty approached the legal issues of copyright and compliance across different national contexts? And what has been the institutional approach to these legal and risk management issues? While this dossier largely focuses on the US, UK and Canadian contexts as an initial resource, it is our hope that it will catalyze further research into other legal contexts and communities of practice that shape media education and research across Asia, Africa, Australasia/Oceania, South America and the Middle East, as well as in trans/supranational groups such as the European Union, which through the General Data Protection Regulation Program, influences the sharing of data in and outside the EU and European Economic Region.
A second series of issues prompted by the pandemic involves cost and access. Academic video streaming services have long existed, but faculty have concerns about both the scope of their catalogs and the cost of their services. As commercial streaming proliferates further, the issues raised in requiring students to subscribe to these platforms become only more complex. Here, too, is an issue of access: institutions that seek to relegate the liability to students of subscribing to commercial streamers for their courses necessarily shift to students the significant new burden of costs at a time of global financial distress. Likewise, privatizing access to some of the contents of the syllabus also prompts questions of diversity, equity, and inclusion. The constraints of these platforms' catalogs necessarily inform course content at a curricular level. As Peter Lester notes, faculty who honor commitments to “decolonizing and diversifying disciplinary curricula” while providing “the best educational experiences for enrolled students”cannot rely solely upon the limited holdings of a handful of streaming collections. Similarly, as Martin Zeilinger and Darshana Jayemanne note in relation to gaming, “without equitable access to relevant materials in educational contexts,” student media literacy suffers considerably.
In editing this dossier, we were struck by the wide variety of tactics that individual faculty members, departments, and institutions developed in response to the crisis. This reflects upon another important conclusion to be drawn from these articles: that the question of how copyrighted material circulates through institutions of higher learning is as much about risk management and financial costs as it is about interpretations of fair use and the applicable law. At the per title rates that certain institutional licensors currently charge, universities could spend as much in a single year on licensing streaming rights as they have over decades in acquiring DVD titles. Another problem confronting media faculty is when media content is neither available through institutional licensing, nor through commercial streamers, but only in physical form on DVD. Being able to upload media content not otherwise available is a way in which fair use is a vital solution to the problems of teaching in an online environment prompted by the pandemic, but also after the vaccine brings an end to this immediate crisis.
Consequently, a number of institutions have made the decision to digitize titles from their own media libraries and make them available to students, often limiting access to those enrolled in specific courses via the university's learning management system (LMS). Media librarians lisa Hooper, Regina Longo, and Jennifer Zuccaro survey these practices at length in this dossier. In practice, this often means "ripping" media from a physical disc and uploading to a cloud-based, password-controlled media content management platform of some kind. Increasingly, universities have come to rely on third-party vendors like MediaAmp, Panopto, Yuja, and Kaltura to provide these services, which in turn are often integrated with campus-wide LMS providers like Canvas and Blackboard. Together, these arrangements enable institutions to both provision media and implement access restrictions to it.
As a number of our authors attest, developing community practice guidelines for implementing such systems is important. Suggested practices include restricting access to specific course sections, implementing controls to prevent downloads, and providing contextual statements to students affirming the importance of copyright and the obligation to use the material solely for the purposes designated. It is significant to note, however, that not all universities responded to the COVID crisis in the same way. Many institutions, confronted with the same set of facts and the same novel circumstances, reached different decisions. Several of our contributors point to the calculations of financial risk that alter institutional practices on the ground—and that are often magnified, the smaller the school is. For example, private liberal arts colleges are often more risk averse than large state schools with larger budgets and legal departments, and in the US, sovereign immunity provides protection for state schools in a way that it does not for the private universities. In the UK and US, risk management decisions also play a part in assessing the mixed case law around whether anti-circumvention prohibitions – in the DMCA (in the US), or the Copyright, Designs, and Patents Act (CDPA) (in the UK) – prevent film faculty from otherwise permissible reliance on fair use.
We have organized this dossier thematically to help focus attention on questions of law, professional practice, and those emerging from specific case studies. In Part 1, several articles address copyright issues in film and media studies education from a legal and policy perspective. Patricia Aufderheide surveys these issues, outlining the history of advocacy around fair use and copyrighted media texts in the academy (a history that she has been principally involved in through her work with the Center for Media and Social Impact at American University). Aufderheide focuses our attention on an important discrepancy in the practice of fair use in the US, arising from restrictions on circumvention enacted as part of the DMCA. Emily Hudson focuses on the UK legal context, identifying a key issue that resonates across multiple countries and regions such as the United States, UK and Canada: that faculty are legally protected in face-to-face teaching in their pedagogical use of media, but face copyright restrictions with the identical media content when teaching online. The pandemic has only made this discrepancy all the more glaring and senseless. Hudson argues for a robust claim of fair dealing through the British CDPA that will also have relevance for other affiliated legal contexts such as Canada, India, Australia and Singapore, as well as in advocating fair use in the United States. Brendan Kredell interviews Michael Madison about copyright and fair use in the American context. Madison discusses what is – and is not – novel about the challenges confronting educators in the midst of the COVID pandemic, and looks ahead to the lessons that should be taken away for advocacy in a post-COVID world. The acceleration of technological change has allowed private corporations to quite literally set the terms upon which copyrighted materials circulate in higher education institutions. In the absence of legislation or regulatory oversight, corporate actors such as YouTube and Netflix have taken on the custom- and norm-setting powers that govern our day-to-day understanding of what “fair use” means.
In Part II, we have included a series of articles that cover the historical best practices developed by professional organizations and universities, as well as the specific responses they adopted in response to the COVID crisis. The dossier presents reports of the findings of the SCMS Fair Use Committee (written by committee members Michael Aronson, Lauren Bratslavsky, Karen Petruska and Adam Szymanski) and an ad-hoc committee of the Film Studies Association of Canada on copyright in higher education (chaired and written by Peter Lester). Each report outlines the specific legal and policy challenges confronting educators in both countries, and describes the actions taken by members (and member institutions). Both also discuss how the lessons learned should inform professional advocacy moving forward. Also in this section, we have included lisa Hooper, Regina Longo, and Jennifer Zuccaro’s analysis of the practices of American media librarians in response to COVID. They surveyed 169 American universities and found an emerging “community of practice” in the digitization of media for teaching purposes, identifying what they describe as “three key common practices”: that libraries digitize content that is not otherwise available via existing digital platforms; that access is restricted to students enrolled in the course via a course management system, and finally, access is limited to the duration of the course. Their survey points to wide differences in current institutional interpretations and concomitant practices around the ripping and digitization of audiovisual materials, based on institutional caution around risk management issues and legal exposure.
Part III includes a pair of articles that explore how the issues and debates raised in the prior sections play out in specific use cases. Matthew Solomon and Vincent Longo explore their experience of developing a new online resource for students of media, The Audiovisual Lexicon for Media Analysis, and the issues that they encountered in making the work available via YouTube. As YouTube has consolidated its position as a de facto standard for online distribution, it has also effectively redefined the practice of fair use in such a way that favors copyright holders at the expense of practitioners. YouTube's AI-based evaluation system and copyright “strike” policy leave even clear-cut examples of transformative use such as The Audiovisual Lexicon in a precarious position; as Longo and Solomon ruefully note, “unfortunately there is no algorithm for fair use.” Martin Zeilinger and Darshana Jayemanne explore related issues in the context of teaching game studies and design. They demonstrate how the absence of educational licenses presents particular problems for teaching games; in the face of these concerns, instructors have resorted to all kinds of workarounds, including live streaming their own gameplaying, lending their laptops to students, using public domain game texts, and relying on emulator software (and the legal questions that surround it). The authors propose solutions to the needs of games teachers and researchers, calling for the automatic inclusion of educational licensing in all games, and the urgent need for a best practices statement devoted to gaming.
As we write this in December 2020, the vaccine has now begun its global distribution and we look forward to the eventual medical control of the pandemic. It seems likely, however, that this year’s accelerated turn to online teaching will have long-lasting consequences, with a greater number of educators turning to online and hybrid teaching even when face-to-face teaching returns. It is also clear that there are urgent areas in which our professional organizations must renew advocacy and produce regulatory or legislative change. Among the many issues raised in this dossier, agenda items for future advocacy and legislative change include: the extension of classroom copyright exemptions to the online space; teaching and research exemptions for circumventing technologies; the embedment of automatic educational permissions and exemptions into gaming licenses; the affirmation of the pedagogical right to use entire films and other forms of media; the negotiation of institutional licenses with commercial streamers; and finally, the need to develop best practice guidelines for video games.
We are under no illusions regarding the issues described above: the problems we confront are complex ones. Copyright law is varied and sometimes inconsistent across (and even within) the various jurisdictions in which SCMS members teach. Resources are distributed inequitably amongst institutions, and consequently, risk management strategies vary widely from one school to the next. Perhaps most critically, a changing technological and economic regime has unsettled some of the basic assumptions of how copyrighted media circulates. The centrality of streaming services and social media platforms to the present and future of media means that faculty and their institutions must consider not only applicable copyright law in their home jurisdictions, but also how the contractual terms of service imposed by private corporations represent threats to access.
That complexity masks what we see as a simple assertion, however: that media educators need access to the texts they teach in order to do their work. That principle is a guiding light as we renew our commitment to advocacy moving into a post-COVID world. SCMS must continue to lobby for expansive exemptions to copyright law for its members. But we must also strategize on new means of assuring access for future students and scholars of media. A vaccine will hopefully restore some sense of normalcy to our lives soon, but the problems that this pandemic laid bare will long outlive it. SCMS, working alongside other educational and professional organizations, must continue to advocate for regulations and exemptions that protect access, promote equity, and ensure that decisions about what faculty teach in the classroom are driven by pedagogical concerns and not corporate contractual ones.
Kirsten Moana Thompson is Professor of Film Studies and Director of the Film Programme at Seattle University. She teaches and writes on animation and color studies, as well as American, German, and Pacific studies. Recent work has focused on the animated surfaces in Moana; the material color history of Disney and Faber Birren; Ludwig Von Drake and the Disney promotional film, and Reddy Kilowatt. She is the co-editor of Animation and Advertising (co-ed. M. Cook, Palgrave, 2019), the first book to examine the relationship of animation with non-theatrical media, and is currently working on three other books, “Color, Visual Culture and American Cel Animation”; “Bubbles”; and “Animated America: Intermedial Promotion.”
Brendan Kredell is an Associate Professor of Film Studies and Production at Oakland University. His research focuses on the intersection of media and urban studies, the application of digital humanities tools to the study of media audiences, and film festivals. He is the co-editor (with Marijke de Valck and Skadi Loist) of Film Festivals: History, Theory, Method, Practice and the forthcoming Routledge Companion to Media and the City (with Germaine Halegoua and Erica Stein.)
Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago: University of Chicago Press, 2011) ↑