Copyright and Fair Use in Teaching
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Copyright issues come up every day in film teaching. Managing copyright issues becomes urgent and acute, however, when students and teachers are entirely dependent on virtual communication. Fortunately, in the U.S, student learning and scholarship are often accommodated within copyright law. Furthermore, the Society for Cinema and Media Studies has already provided some clarification on copyright issues.
In the United States., almost everything you might want to use for teaching about film is probably copyrighted. True, much material produced before 1925 (in 2020, and one year later than that every year forward) is no longer copyrighted. Some US federal government works are not copyrighted (although state and local government works might be). And some works produced before 1976 had copyrights that were not renewed, and so fell into the public domain. However, the massive reform of the Copyright Act in 1976 made copyright default, eliminated the need for renewal, and vastly extended its reach. Today, most of modern culture is covered by at least one kind of copyright. (Recorded music can have several levels of copyright.) The Sonny Bono Copyright Extension Act of 1998 made copyright terms even longer; they now typically expire 70 years after the death of the author, no matter who owns the copyright. As well, even finding out what is still in copyright remains an arduous and idiosyncratic process; there is no central database. So most professors start with the assumption that work is copyrighted.
The academic libraries that teachers draw upon have heavily invested in licensing and purchasing materials for their use. The great bulk of material teachers use is licensed. But there still are cases in which teachers and students face questions about accessing copyrighted material that is not licensed. Fortunately, copyright exemptions that variously affect teachers and students (educational exemptions), librarians (library exemptions) and everyone (fair use) make it possible to teach routinely without always facing the challenges of licensing.
U.S. teachers have something close to a blanket exemption from copyright infringement, so long as they are within the four walls of the classroom, in Sec. 110 (1) of the Copyright Act (17 U.S.C.). But even before the 2020 pandemic, that educational exemption often was not helpful to them. They might ask students to make work that gets posted online; they might want to put materials into a slideshow that is stored on their online learning management system; they might want to share their own pedagogical techniques or student work with colleagues outside the classroom. This leads professors to turn to the copyright doctrine of fair use (Sec. 107 of the Copyright Act), the right to repurpose copyrighted material without permission or payment under some circumstances.
Before 1990, it was often confusing to figure out how to interpret fair use. Thereafter, it became increasingly easy for the most common ways to employ fair use. That is because the legal logic of interpreting fair use put forward by Judge Pierre Leval in a pathbreaking law review article has become widely adopted in the courts (and therefore used by anyone wanting to stay within the law). The logic is pretty simple: Are you using the material for a different purpose than its marketplace purpose? Most films taught by film professors, for instance, are produced for entertainment, not to be studied academically. Is the amount you are using appropriate to the new purpose? Many times film professors want to show something about a film—say, Welles’ deployment of deep focus—rather than show the entire film. So the amount chosen would be linked to the parts of the film that make the pedagogical point. If those two questions are answered, they effectively resolve the so-called “four factors” mentioned in the law. (Those “four factors” are the nature of the original work and of the new work, the amount taken, and the effect on the market.) What for a long time was a legal concern—is the new use robbing the copyright holder of rightful payment?—is resolved with this logic, because the new permitted use is not even within the market of the original use.
Fair use is a case-by-case decision, and its implementation does depend on the specific context. But the context of many common cases is very similar. So how this works out in practice can be a focused mental exercise the first few times it’s made, but it quickly becomes routine because so many specific uses are so similar in kind (and therefore logic) to others. As well, SCMS’ two best-practices statements on fair use help lay out both the logic and the limits of the logic in several specific cases. The teaching best-practices statement explains fair use within a face-to-face and online teaching context, and also what to consider when you record off-air. It also provides clarification on the TEACH Act (Sec. 110  of the Copyright Act), which extends some of the educational exemptions to an online context —but does not, crucially, address fair use. The Media Studies Publishing best-practices statement helps professors and their students understand when it is permissible to quote copyrighted material in published work, online, and within e-texts.
The TEACH Act, which narrows the educational exemptions of Sec. 110 (1), discussed above, narrows only those exemptions, not the employment of fair use. So if educators want to rest their argument for unpermissioned use on educational exemptions, they must follow the TEACH Act. If, however, they want to argue that their uses conform to the fair use doctrine, which applies to anyone within the jurisdiction of the U.S., they can go beyond it. But they might not need to, and if they do not need to go beyond them, it may be worth sticking within the restrictions of the TEACH Act. Their administrators might be more comfortable with that than with arguing for new online classroom uses under the fair use doctrine. Many counsel at universities have been legal Swiss Army knives, moving between different aspects of the law as problems come up, and they may not be familiar with contemporary copyright law interpretation. Without a robust understanding of the current logic of fair use, they may exaggerate risk.
Risk, of course, is inherent in all exercise of one’s rights. Because your interpretation falls within current expectations does not mean that no one can challenge you. But when a field of practice, such as film professors, has publicly articulated common standards, as film professors have done in their best practices statements, risk is dramatically lowered. While university counsels are justly charged with protecting the valuable interests of their institutions and not permitting undue risks, they also are charged with making sure the institution can function. The risk of not being able to teach to a minimum standard is a real one in some cases where copyright limitations obstruct the mission; counsels need to consider both sides of the risk equation, particularly when the exercise of fair use is within a common practice.
The 2020 pandemic created unprecedented conditions for teaching about film, perhaps most urgently raising the question of access to copyrighted materials that are not already commercially available online. Most libraries have been amenable to purchasing online access to materials that already are available on the market. Fair use becomes much harder to argue for, if there is an available commercial product at a reasonable price (or at least a price that is reasonably within the expectations of the library). But some film professors may find that some materials core to their teaching mission are not available at all in a digital format commercially.
Fair use is designed as a highly flexible doctrine, such that it is not limited to yesterday or today’s uses, media forms, or technologies. Its flexibility comes into play as well when circumstances change radically, potentially making copyright a dealbreaker for getting our work done. The reason goes back to the basic logic of fair use: its ability to liberate copyrighted material for re-use is one of the ways that copyright continues to be a “limited” monopoly, as the Constitution mandates. When the Constitution was written, copyright applied to very few things, only if you applied for it, and for a very short time. Today’s copyright term is so long that it’s effectively forever, in terms of our own lives and culture. And it applies to almost everything, by default—no application required. If fair use did not limit the private censorship that the Copyright Act explicitly permits by granting licenses, it might make the Copyright Act unconstitutional. Don’t forget, the First Amendment bans the federal government from passing laws that inhibit freedom of speech. So laws that grant private individuals the right to censor without any escape hatches would violate the First Amendment of the Constitution.
Many professors (and their librarians) have interpreted fair use as a reason to be able to make available online the materials that are central to the core learning of a course, often in circumstances that would not fall under the TEACH Act’s interpretation of educational exemptions for the digital environment. They have used fair use in order to copy and make available to professors those materials for formal teaching, even when the entire work must be copied, if the logic of fair use is met. The materials used in a course are, of course, restricted to enrolled students, within the time frame that is relevant. For instance, a professor may make available, or have the library make available, materials within the assigned-viewing window, and again at finals time.
But there is a wrinkle. Often, modern copies of films come with encryption. And a separate law, the Digital Millennium Copyright Act (DMCA), makes the breaking of digital encryption (which it calls circumvention) a criminal act. The criminal penalties for decryption are not associated with copyright, and are not part of Title 17 of the U.S. Code, which holds the copyright provisions. The DMCA’s ban on decryption can be overridden if you win an exemption from the Copyright Tribunal, but such exemptions are not based on copyright arguments. They are justified by an argument that otherwise legitimate practices (e.g. car repair, software preservation, film teaching) cannot be done without an exemption. Thanks to efforts from SCMS members, led by Prof. Peter DeCherney, professors in any field can break encryption to access short segments of video for teaching. As well, film students can break encryption on such materials for learning/teaching purposes. The exemptions are renewed every three years and so far these exemptions have been both renewed and extended regularly. Documentary and fiction filmmakers can also break encryption for the purpose of accessing material to make films. All these temporary exemptions, however, apply only to “short” excerpts of works, with no definition of how short. The DMCA’s ban on decryption is not susceptible to a fair use override, because it’s not part of copyright law.
This ban on decryption puts librarians and the legal counsel at professors’ institutions into a tight spot, when considering making entire films available for students. Even in a pandemic crisis, the DMCA is clear that breaking encryption is a criminal act. Exemptions cover short uses, but not copying of the entire film. Fair use is not an eligible argument to use in response, because fair use is part of copyright law.
Pandemic practice has varied widely. Some libraries, following general counsel’s advice, have refused to break encryption to copy entire works for film professors, to safeguard the institution from legal threat for violating the DMCA anti-circumvention rules. The fear of litigation is not entirely unfounded, either. During the pandemic, publishers sued the Internet Archive for its only-for-the-pandemic, highly-restricted lending policy for books. At the same time, other libraries have proceeded to make entire copies of works that are not available for licensing quietly available in highly restricted circumstances—with uses limited to members of a particular course for a particular period within a course. And of course there has been quiet, unsanctioned personal sharing of materials.
For film professors, working in an almost entirely copyrighted field, understanding the strength and flexibility of fair use is essential to daily practice, and more than ever in unprecedented circumstances such as a pandemic. Understanding how the DMCA’s anti-circumvention requirement impinges on that important right can motivate film professors to alert legislators to the need to change this counter-productive legislation. Fair use should be an appropriate override to the law’s restrictions, which effectively constrain the employment of this critical part of copyright law.
Patricia Aufderheide is University Professor of Communication Studies in the School of Communication at American University in Washington, D.C. She founded the School's Center for Media & Social Impact, where she continues as Senior Research Fellow. Her books include Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago), with Peter Jaszi; Documentary: A Very Short Introduction (Oxford), The Daily Planet (University of Minnesota Press), and Communications Policy in the Public Interest (Guilford Press). She has been a Fulbright Research Fellow twice, in Brazil (1994-5) and Australia (2017). She is also a John Simon Guggenheim fellow (1994) and has served as a juror at the Sundance Film Festival among others. Aufderheide has received numerous journalism and scholarly awards, including the George Stoney award for service to documentary from the University Film and Video Association in 2015, the International Communication Association's 2010 for Communication Research as an Agent of Change Award, Woman of Vision award from Women in Film and Video (DC) in 2010, a career achievement award in 2008 from the International Digital Media and Arts Association and the Scholarship and Preservation Award in 2006 from the International Documentary Association.
Pierre N. Leval, “Toward a Fair Use Standard,” Harvard Law Review, 103: 5, 1105-36 (1990). My analysis of the significance of this essay is at Patricia Aufderheide, “Leval, Pierre N. Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990),” Communication Law and Policy, 25:3, pp. 412-417. ↑
The best practices documents, created in 2007, are available at “Positions and Policies” on the Society for Cinema Studies site at https://www.cmstudies.org/page/resources. They are also available at the Center for Media & Social Impact. The Society for Cinema and Media Studies’ Statement of Best Practices for Fair Use in Teaching for Film and Media Educators (Cinema Journal 47:2, Winter 2008: 155-164) is available at https://cmsimpact.org/wp-content/uploads/2016/03/scms_teaching_statement_-_20.pdf and the Society for Cinema and Media Studies’ Statement of Fair Use Best Practices for Media Studies Publishing (Cinema Journal 49:4, Summer 2010:179-185) is at https://cmsimpact.org/code/society-cinema-media-studies-statement-fair-use-best-practices-media-studies-publishing/. The effort to create these documents was led by an SCMS committee chaired by Prof. Peter DeCherney, in which I participated. It underwent legal review at the Glushko-Samuelson Intellectual Property Law Clinic in the Washington College of Law at American University. The best practices statements followed a document of best practices in publishing created in 1993 under the aegis of Prof. Kristin Thompson, and crafted by Prof. Peter Jaszi. This earlier document is also available at the SCMS website, at https://www.cmstudies.org/resource/resmgr/docs/fairusefilmstills.pdf. ↑
One way to measure how risky the most common fair use situations are is to look at insurance practices. When documentary filmmakers created their Documentary Filmmakers Statement of Best Practices in Fair Use, every errors-and-omissions insurance company in the U.S. changed its policies to routinely insure for fair use claims that fell within those common situations, so long as a lawyer’s letter attested to the appropriate fair use. Typically insurers do not charge more for this inclusion, demonstrating that their evaluation of the risk is extremely low. See Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright, 2d. ed, Chicago: University of Chicago Press, Ch. 7 (2018). ↑
The exemptions are itemized at CFR [Code of Federal Regulations] 37, §201.40, which can be found at https://www.law.cornell.edu/cfr/text/37/201.40. They override the banning of decryption specified at 17 U.S.C. 1201(a)(1)(A). ↑
The incident was well summarized, with extensive links to original documents, in Aja Romano, “A lawsuit is threatening the Internet Archive — but it’s not as dire as you may have heard,” Vox, June 23, 2020: https://www.vox.com/2020/6/23/21293875/internet-archive-website-lawsuit-open-library-wayback-machine-controversy-copyright. ↑