Using Films in Online Teaching Under Fair Dealing: A UK Perspective
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This article discusses the use of film and audiovisual content in online teaching without a copyright licence. It responds to concerns from higher education institutions (“HEIs”) that the shift to remote learning due to the COVID-19 pandemic has generated new copyright problems and exposed institutions to new copyright risks. One concern has been ensuring that Film Studies departments can still show entire films to students, this being an essential part of the instruction that in regular times is undertaken via in-person screenings. In the United Kingdom – the focus of this article – HEIs are allowed to play films in class, without obtaining a licence or paying a copyright fee, due to a provision (or to use the technical language, an exception) of the Copyright, Designs and Patents Act 1988 (“CDPA”). This exception (section 34) has meant that HEIs have not had to worry about copyright for this routine and indispensable practice. However, section 34 would not seem to apply to online teaching. This raises the question of whether HEIs risk infringing copyright by replicating, in the online environment, the sort of teaching practices that occur in-person. Given that lecturers in other disciplines also use audiovisual content in their teaching, ranging from clips to entire films, these copyright questions are of broader relevance.
One answer is for HEIs to use digital platforms such as Kanopy and Box of Broadcasts that host content that has been cleared for educational use. They might also look for content released under a Creative Commons licence. However, these answers are incomplete, as they are highly unlikely to cover every film required – and there are pedagogical objections and logistical problems with asking teaching staff to revise curricula so that only cleared content is taught. The key message in this article is that the CDPA contains other exceptions on which HEIs may be able to rely, notably fair dealing for the sole purpose of illustration for instruction in section 32. Indeed, it seems that many UK HEIs have updated their copyright policies for the 20/21 academic year so that section 32 plays a role in the copyright strategies for film and audiovisual content. Although this article focuses on UK law, its ideas have broader relevance, as the legal and practical considerations it discusses may be of interest to readers in other countries with fair dealing (such as Australia, Canada, India and Singapore), and to those whose copyright statutes include fair use (such as the United States).
This article has two parts. The first part explains why HEIs should feel comfortable in adopting liberal interpretations of exceptions such as section 32. This is explained by reference to the crucial role that exceptions play in copyright law and the dangers of HEIs adopting risk averse interpretations that hinder, rather than facilitate, mission-critical activities. The second part discusses the nuts and bolts of the legal arguments in relation to section 32, including practical measures that can reduce an institution’s risk exposure.
The Role and Drafting of Copyright Exceptions
In order to understand the role of copyright exceptions, it is useful to understand the structure of the copyright system. Although the precise implementation differs from place-to-place, the general idea is a set of property-style rights that are granted in relation to creative and intellectual works. Under this system, the “owner” or “rightsholder” is granted the exclusive right to perform certain types of act with their copyright work, such as copying, public performance and making the work available online. The owner can grant permissions (licences) to other people to perform these acts and, depending on the country, can also transfer (assign) their rights to someone else.
However, there would be difficulties with a system that relied solely on individual negotiation for all socially desirable uses to take place. Education provides one example of this. Many acts of educators implicate the rights of copyright owners, such as creating and distributing digitised readings, playing films and audio works in class, and including photographs and images on slides. But it would be impossible to clear all these rights individually, given the huge volume of licences required and the time, resourcing and transaction costs of negotiation. A number of solutions have been found to this problem. Some solutions make licensing easier, such as the collective administration of rights, open licences such as Creative Commons, and the development of electronic databases of content that has been cleared for educational use. Other solutions render licensing unnecessary, for instance where the copyright legislation sets out circumstances in which third parties may use copyright works without the permission of, or payment to, the copyright owner. As noted in the introduction, these statutory provisions are often referred to as exceptions. The analysis in this article is predicated on the view that: (1) exceptions are a crucial part of the copyright system because of the important interests they support (research, education, freedom of speech, artistic expression, preservation, and so forth); and (2) exceptions should be given a liberal interpretation that reflects these important goals.
Let’s say we agree that educators should not have to pay for a licence every time they use a copyright work in teaching. This might be because the use is insubstantial (for instance, where a small image of a film poster is included on a PowerPoint slide) or does not compete with the copyright owner’s work (for instance, for uses of works that are not monetised through distribution and sale, such as television advertisements). But it may be unrealistic to expect the legislative drafter to specify all these instances in advance in the copyright statute given the risks of arbitrariness and over- or under-inclusiveness. In any situation, much will turn on the nature of the work being used, how much is taken, the extent of any market harm and the centrality of the use to the educational goals. As such, it may be better to write some exceptions using open-ended terminology, so that judges have discretion about the application of the law. Such an approach is seen in fair use and fair dealing exceptions, in which “fairness” is the overarching standard to be applied. As will be seen in the next section, while different countries take different approaches to the identification of a subset of “fairness factors”, many of the underlying considerations are very similar.
This drafting style has consequences for HEIs and other users, as it will not always be possible to make firm predictions about whether a particular act is within an exception. This will be a problem if decision-makers are comfortable only with minimal exposure to risk. However, this article is written on the basis that HEIs should not be unduly cautious or avoid reasonable interpretations of the law. While conservative approaches are sometimes adopted “just to be on the safe side”, they ultimately serve to weaken exceptions and to entrench a permissions culture, even where permissions are not legally necessary. It is far more difficult for exceptions – and in particular standards like fair dealing and fair use – to occupy a meaningful role in copyright law if users hardly ever rely on them or never defend their approach in the event of challenge.
The pedagogical and practical consequences of an excessively risk-averse approach should also be borne in mind. Thinking of Film Studies, if HEIs forego any use of exceptions and do not allocate significant resources into individual rights clearance, then teaching staff will (in theory at least) need to revise their courses to only use films on subscription platforms and generally accessible websites. This has the potential to diminish the learning experience for students, place teaching staff under pressure to re-write courses and, ironically, only encourage those staff to “go rogue” (in terms of copyright) in order to avoid these issues.
For those devising new copyright policies and/or encouraging senior management to sign off on them, it is therefore important to take care in how risk management concerns are presented. Simply asking “will this expose us to risk?” can focus attention on uncertainties and worst case scenarios, and leave decision-makers too nervous to embrace a greater role for exceptions. Instead, it is worth reframing the discussion to say, “playing entire films in Film Studies is mission critical. How can we facilitate this activity in a way that reduces or minimises legal risks?” This better reflects the realities of how exceptions such as fair dealing and fair use operate, i.e., that although there is much case law and industry practice that can guide interpretations, certainty is not possible. It also reflects the realities of copyright in institutional settings: that much day-to-day activity is undertaken by teaching staff, librarians, learning technologists, and so forth, and it is unrealistic to expect those people to operationalise a policy that does not map onto resources, workflows and teaching needs.
The Application of Section 32 to Online Teaching with Films
Having considered the role and drafting of exceptions, this article now focuses on its key legal contention: that UK HEIs can invoke section 32 for the use of films and other audiovisual content in online teaching, including entire works and extracts or clips.
As noted in the introduction, HEIs do not need to give much thought to the copyright implications of playing films in classrooms. This is due to section 34 of the CDPA, which states that such an act, if undertaken for educational purposes, is not “showing the film in public” for the purposes of infringement. HEIs do not, therefore, need to obtain permissions for in-person screenings. From reports, Film Studies lecturers simply borrow a DVD from the library and play it to students enrolled in the module. However, on current interpretations, section 34 does not apply where films are screened or made available for online viewing. This creates a potential asymmetry in the copyright implications of in-person and online teaching. One option is to use authorised content on Kanopy, Box of Broadcasts and other (authorised) platforms. A second option is to rely on another exception. The premise of this article is that HEIs can rely on section 32: fair dealing for the sole purpose of illustration for instruction. That provision states:
Fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing is—
(a) for a non-commercial purpose,
(b) by a person giving or receiving instruction (or preparing for giving or receiving instruction), and
(c) accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
I have elaborated elsewhere on the legal arguments in favour of this interpretation and encourage those with a particular interest to consult this analysis. Some of my arguments are based on the statutory text. For instance, section 32 applies to dealings “for the sole purpose of illustration for instruction.” Given the purpose of exceptions, this phrase should be construed broadly, such that it extends not only to uses that are essential to illustrate a teaching point but to the use of content “to support, enrich or complement the teaching, including learning activities.” Section 32 applies only to dealings undertaken “for a non-commercial purpose”, but this sort of language is usually interpreted to mean the dealing itself, such that section 32 can be relied upon even if the HEI receives fees from students. It is also necessary that the dealing be fair. In contrast with fair use in section 107 of the US Copyright Act, where the statute identifies four factors that “shall” be considered in assessing fairness, the CDPA contains no such guidance. Instead we must look to the case law. A number of factors have been relevant to whether a use is fair, including the amount taken, whether the defendant’s use competes with the exploitation of copyright by the claimant (for instance by substituting for the claimant’s work), the motives of the defendant, and whether the defendant needed to use the work to achieve its purpose. Given this fact-sensitive inquiry, fair dealing is often described as “a question of degree ... or of fact and impression.” This sort of fact-sensitive inquiry shows parallels with the sort of reasoning in fair use cases and in fair dealing analysis in other countries.
When considering the circumstances in which section 32 might cover the use of audiovisual works in online teaching, the key question will often be whether the use is fair. There are many steps that HEIs can take to maximise the chances that this will be answered in the affirmative. Let’s start with showing entire films in Film Studies programmes. Here, a useful guide is to recreate as closely as possible the circumstances that exist for in-person screenings that are covered by section 34. This is because the existence of section 34 indicates the view of the legislator that in-class screenings and other public performances should not require a copyright licence. It can be argued that as a matter of policy, equivalent acts in online teaching should also be permissible – and that this can be effected through section 32.
The analysis, above, focuses on the use of entire films in Film Studies programmes. However, other educational uses of audiovisual content will also fall within section 32; indeed, the fair dealing arguments may be even stronger. For instance, consider a lecturer who wishes to use an extract from a feature film in their teaching. Factors that might suggest the lecturer’s dealing is fair include: (1) the length of the extract; (2) the lack of any adverse market harm (as watching an extract is unlikely to substitute for viewing or purchasing an entire film); and (3) the amount shown being proportionate to the educational goals. Bear in mind, too, that the definition of ‘film’ in UK law is broad and covers content they may have lesser degrees of cinematographic quality or auteurship, such as advertisements, official videos, recordings of lectures, and the footage of a skydive. For films that are more informational or in the nature of actuality footage, it might also be relevant to fair dealing that the copyright owner would not usually seek to monetise their work through sale and licensing. The key take-home message, therefore, is that fair dealings are those with a credible educational purpose; where the amount taken (whether a short extract or the entire film) is tailored and proportionate to that purpose; and that, where relevant, efforts are made to ensure that any adverse market effects are minimised, for instance via limits on how students access content.
To provide a final example from my own teaching, in our studies of passing off, we consider Pacific Dunlop v Hogan, which concerned an advertisement that parodied the knife scene from Crocodile Dundee (Peter Faiman, 1986). I play both the knife scene and the advertisement. Showing the film extract has an important educational goal and is proportionate, as it enables students to see the events in the knife scene, Mick Dundee’s character and the production values of Crocodile Dundee. This helps them to form a view on the central legal question of the case, namely, whether Paul Hogan, who played Mick, would be perceived by viewers of the advertisement as having authorised its making. Although the entire advertisement is played (which could suggest against fairness), the work is short and watching it in full is necessary for students to engage with the legal arguments. Furthermore, makers of television advertisements do not generally exploit their copyright in the same way as directors and producers of feature films – there is no market harm to the copyright in the advertisement.
This article has argued that UK HEIs can rely on section 32 of the CDPA to use films – including entire feature films – in online teaching. It has not addressed other exceptions that may also be relevant, such as fair dealing for the purpose of criticism, review or quotation. Nor has it discussed technical matters, for instance in relation to the mechanics of digitisation and reformatting, where digital files should be stored, the best software for streaming content, and so forth. But two brief legal points can be made on these technical questions.
First, some films are sold on physical media that is subject to copy-protection controls. The CDPA has an enforcement regime for the circumvention of such technological measures. This regime is separate and additional to copyright and means that civil remedies (e.g., damages and injunctions) are available for acts of circumvention. In the UK, exceptions such as section 32 do not apply to this regime. It is therefore possible that a court may conclude that there is liability for circumvention of, say, a copy-protected DVD, even though all subsequent acts of copying and communication fall within section 32. Although this risk would appear to be low (as suggested by the lack of case law around technological measures), HEIs will need to decide, as part of their risk assessment, whether they are willing to break copy controls.
Second, one concern of copyright owners, for instance as seen in the US litigation against the HathiTrust digital library, is that a security breach might lead to digital files being released to the public. There are differences between HEIs digitising films and the mass digitisation of books that was the subject of the HathiTrust litigation. Not only will HEIs be dealing with fewer titles but it will often be the case that unauthorised copies of those films are already circulating digitally. HEIs should not, nevertheless, contribute to this state of affairs. They should therefore give consideration to the storage, accessibility and management of digital files.
Interestingly, it may be that once an HEI has committed to using fair dealing in a robust way for films, the main challenges are mostly technical. But this is not to suggest the copyright lawyers can step back; on the contrary, although this article presents a meaningful role for section 32, the legal issues with circumvention of copy controls suggest that further lobbying efforts are needed in this space, in order to ensure that legitimate uses of exceptions are not thwarted through technological means.
Emily Hudson is Reader in Law at King’s College London. She researches extensively in copyright law and is the author of Drafting Copyright Exceptions: From the Law in Books to the Law in Action (Cambridge University Press, 2020).
Jane Secker and Chris Morrison, “Will the pandemic force universities to address the challenges of copyright?” WONKHE, June 16, 2020, https://wonkhe.com/blogs/will-the-pandemic-force-universities-to-address-the-challenges-of-copyright-2/. ↑
Emily Hudson and Paul Wragg, “Proposals for Copyright Law and Education During the COVID-19 Pandemic”, Northern Ireland Legal Quarterly 71, no. 4 (2020): OA35–OA58, https://nilq.qub.ac.uk/index.php/nilq/article/view/548/722, OA40–OA42. ↑
I have previously released copyright guidance for UK HEIs in relation to the use of film in online teaching: Emily Hudson, “Copyright Guidance for Using Films in Online Teaching During the COVID-19 Pandemic” (August 4, 2020), https://ssrn.com/abstract=3667025. This Guidance was endorsed by the British Association of Film, Television and Screen Studies (https://www.baftss.org/screening-films-online-in-COVID-19). ↑
The use of the term “property-style” reflects the scholarly debate as to whether copyright rights are truly a form of property. For discussion of that debate, see Mark Lemley, “Property, Intellectual Property, and Free Riding”, Texas Law Review 83 (2005): 1031–1075. ↑
See Hudson and Wragg, Proposals, OA35-OA36. ↑
The term ‘collective administration’ refers to the joint management of the rights of multiple individuals, often by a collective management organisation. Collective administration can reduce the costs of licensing in a number of ways, including through the development of blanket licences under which licensees may use any work in the repertoire. In the UK, there are a number of blanket licences for education, including those offered by the Copyright Licensing Agency (for published print materials) and Educational Recording Agency (for television and radio broadcast material). ↑
For a strong articulation of this approach, see the analysis of fair dealing by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada (2004) 236 DLR (4th) 395. ↑
To use an example from my own teaching, when we discuss the copyright case Kogan v Martin  EWCA Civ 1645, which concerned a dispute over authorship of the script for Florence Foster Jenkins (Stephen Frears, 2016), I include on my slides a still of the movie poster. This is a fast way for students to recall or be introduced to the film. ↑
Again, from my own teaching, in passing off we ask whether there can be liability for using, without permission, a character and plot incidents from another entity’s television commercial. This was considered in the Australian case, Telstra v Royal & Sun Alliance Insurance  FCA 786. I play two advertisements in full so that students can understand the legal issues and reasoning in that case. ↑
The term “standard” comes from the literature on legal rulemaking. “Standards”, which are more open-ended and preserve judicial discretion, can be contrasted with “rules”, which specify the legal consequences of a set of circumstances in advance. For discussion in the context of copyright exceptions, see Emily Hudson, Drafting Copyright Exceptions: From the Law in Books to the Law in Action (Cambridge: Cambridge University Press, 2020), especially chapter 2. ↑
James Gibson, “Risk Aversion and Rights Accretion in Intellectual Property Law”, Yale Law Journal 116 (2007): 882–951. ↑
Brandon Butler, “Transformative Teaching and Educational Fair Use After Georgia State”, Connecticut Law Review 48, no. 2 (2015) 473–530; Hudson, Drafting Copyright Exceptions, especially chapters 5 (fair use) and 8 (fair dealing in the UK). ↑
There is a lot of legal analysis that sits behind this statement. The essence of the argument is that screening a film in public implicates the public performance right (which is the target of section 34), while making it available online implicates the reproduction and communication rights (which are not covered by section 34). For a full explanation, see Hudson and Wragg, Proposals, OA40-OA42; Hudson, Copyright Guidance, para. 2.3. See also Football Association Premier League v QC Leisure  EWHC 108 (Ch), esp. , . ↑
Hudson, Copyright Guidance, paras. 3.1-3.3 ↑
For analysis of section 32 and interpretations in the higher education sector, see Chris Morrison, Illustration for Instruction and the UK Higher Education Sector: Perceptions of risk and sources of authority (MA Thesis, King’s College London, 2018), https://kar.kent.ac.uk/73310/. ↑
Hudson, Copyright Guidance. ↑
This language is taken from Recital 21 of the Directive on Copyright in the Digital Single Market. See also letter from A. Solloway (Minister for Science, Research and Innovation) to D. Prosser dated 23 April 2020, https://www.rluk.ac.uk/letter-to-ministers-copyright-and-enabling-remote-learning-and-research-during-the-COVID-19-crisis/ (stating that ‘[m]any materials used in presentations by teachers, including those which are streamed remotely to students, are likely to fall within [section 32]’). ↑
For a summary, see L. Bently, B. Sherman, D. Gangjee and P. Johnson, Intellectual Property Law (Oxford: Oxford University Press, 5th edition, 2018) pp. 229–232. ↑
Pro Sieben Media AG v Carlton UK Television Ltd  1 WLR 605, 613. ↑
In CCH v Law Society, for example, the Supreme Court of Canada identified six fairness factors. ↑
Hudson, Copyright Guidance, para. 4.5. ↑
Hudson, Copyright Guidance, para. 4.6. ↑
Hubbard v Vosper  2 QB 84, 94 (noting that “you must consider the proportions”). ↑
CDPA s. 5B(1) (film means “a recording on any medium from which a moving image may by any means be produced”). The footage of a skydive was held to be a protected film in Slater v Wimmer  EWPCC 7. ↑
Pacific Dunlop v Hogan (1989) 23 FCR 553. ↑
CDPA ss. 30(1), (1ZA). ↑
CDPA s. 296ZA. ↑
Authors Guild v HathiTrust, 902 F Supp 445 (SDNY, 2012); 755 F 3d 87 (2nd circuit, 2014). ↑