SCMS’ Fair Use Committee: New Urgency during the COVID Emergency
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(This essay was written by Michael Aronson, Lauren Bratslavsky, Karen Petruska, and Adam Szymanski, who, along with Brendan Kredell and Kirsten Moana Thompson, are members of the SCMS Fair Use Committee.)
Well before the present era of pandemic teaching, many in our community faced challenges with integrating clips and full-length media into our teaching practices, especially as more instruction occurred online. From conference sessions to discussions in informal places, we have been exploring how to assert fair use rights, with three main challenges at the forefront: access to media content, technological barriers, and cultivating institutional partnerships. The Society of Cinema and Media Studies [SCMS] is a professional, member-driven, scholarly and practitioner-based organization, which has been and continues to be a crucial advocate for fair use.
In the mid-2000s, through the efforts of member Kristin Thompson and ad-hoc policy-oriented committees like the one we represent, SCMS published a series of landmark documents about the fair use in publishing and teaching. In effect, these documents form codes of best practices to educate members about the four categories for fair use, outline how best to weigh an individual application thereof, and serve to bolster expanding freedoms for scholars and teachers as evidence of commonly held industry best practices. SCMS’s materials are included in the resources developed out of the Center for Media and Social Impact (CMSI), a leader in establishing robust principles for fair use practices. Likewise, the Society has joined legal efforts to argue for and maintain and expand exemptions to copyright law that benefit scholarly and pedagogical work by filing amicus curiae on behalf of members. Codes emerge from the practices of a community, and as judges weigh fair use claims, the community norms tend to prevail. SCMS acknowledges that our work depends upon access to media, across platforms and in a wide range of formats, and is willing to stand up in ways that advance the excellence of our teaching and publishing.
The COVID-19 pandemic has precipitated an upheaval in the norms of higher education. Our suspicions about the challenges facing faculty wanting to exercise fair use rights stood in glaring relief against messy efforts to shift teaching online—these challenges were no longer merely anticipated problems but rather destructive impediments to conducting our jobs effectively. It is very difficult to make predictions as to the pandemic’s resolution, but writing in December 2020, it appears that online teaching will continue to be the standard mode of instruction for the remainder of the academic year. Even after the pandemic emergency has quelled, there is a real possibility that university administrations will continue to emphasize online for-credit education to a greater degree than was the case prior to 2020. Thus, the pandemic accelerated our need to proactively secure our fair use rights by revisiting how our practices have changed, particularly the intersections between access to media, technologies that enable our pedagogical goals, and institutional contexts. We are aware that new standards of teaching and film exhibition come with questions pertaining to fair use. The SCMS Fair Use committee is committed to pinpointing members’ areas of need and concern through an upcoming survey, and then updating best practices for the digital media studies classroom. A starting point is to address the contexts that complicate and challenge our teaching practices pertaining to how to stream and share media with students. We conclude this article with three proposed online resources.
Legal and Logistical Questions
For many of us in the United States, we may generally know that our practices in the physical classroom are legally protected– showing the entirety of a copyrighted film or TV program for educational purposes is allowed (17 U.S.C. § 110 (1)). The TEACH Act amendment to the Copyright Act, as codified at §110(2), also permits the performance of reasonable and limited portions of films in an online classroom. Despite efforts by some academic advocates who have sought clarity over flexibility, courts have refused to specifically quantify how much is too much. These ambiguities have become more urgent concerns in the online classroom: video conferencing tools like Zoom degrade frame rates considerably; commercial streamers like Netflix employ technological guards against sharing films with a virtual classroom; and academic-oriented services like Kanopy and Swank provide limited libraries, especially for those of us who teach with television texts. The faculty desire to teach feature length media in our classrooms, and to choose those works intentionally, based on learning objectives and course goals, from all known global commercial and noncommercial filmed, animated, and computer-generated media, may be under threat. As we share creative workarounds to such issues through informal discussion channels, like Facebook groups and Twitter threads, we cultivate new and amended pedagogical practices that form the norms of our community. And while we recognize the various open source and market-based solutions to our challenges when it comes to replicating the physical classroom, as well as the supportive work by librarians and other university partners, our abilities to exercise fair use in our teaching practices (and scholarship, but we are bracketing that concern for now) nevertheless are hampered by enduring copyright-challenges now amplified by nearly-universal online instruction.
One of the most pressing questions is how to go about screening materials which are exclusively hosted on the platforms of streaming giants such as Netflix, Amazon Prime and Disney+, with many videos not available—and never will be available—for purchase as a DVD, Blu-Ray or individual file download. Streaming might not pose such a problem for film and media scholars if the major platforms offered institutional licensing agreements. As a caveat, it is notable that some university resources recommend turning to public library streaming services that might have a similar catalog and/or welcome faculty to request librarians to seek out licensing deals.
However, in practice, institutional means to acquire licensing rights relies on funding and labor, thereby further compounding disparities. More critically, are we acquiescing to complex licensing models that are closed-off systems? Still, many of us study and teach the texts that are exclusive to these platforms, and thus, we return to the questions raised for instructors and departments.
On the one hand, some institutions report that third-party agreements between streaming service users supersede fair use exemptions for education. When students pay for a personal membership to the streaming service, in a similar way to purchasing textbooks or art supplies, this creates yet another class-based barrier to film and media studies education. For example, this position is exemplified by the following statement about streaming subscriptions on the University of Florida website: “When you agree to the terms of membership, you enter into a contract and the terms of that contract trump any applicable exception in copyright. Therefore, if the membership agreement with Netflix prohibits the showing of the film in a classroom, you are bound by the terms of that agreement even if the face to face teaching exception would otherwise allow it. We encourage instructors who plan to show films as part of their class, particularly when the class is taught online, to investigate the availability of films through Netflix, Amazon, Hulu, and other subscription or short term rental streaming services and to require their students to access that content on their own through their own subscription or account.”
What is also notable about this statement by the library copyright specialists regarding licensed streaming services is that this appears to be their collective recommendation born out of the delicate work to balance competing interests, such as managing tight budgets and supporting faculty, and moreover, legal pressures from risk-averse institutions and calling attention to how copyright law’s lack of a mechanical quantifying limit promotes flexibility to “accommodate[s] a wide variety of circumstances, including new and rapidly evolving situations.” After all, librarians represent prominent, active, and consequential voices in exercising fair use rights. And crucially, they form a critical “practice community” in terms of access and use of copyrighted materials for teaching and research, and their endorsement for an expansive definition of fair use for online education provides important institutional support for future legislative actions or judicial findings. In the face of the pandemic, the signatories state that “[i]t is evident that making materials available and accessible to students in this time of crisis will almost always be fair use.”
Statutory updates to copyright law are often decades in between passage; however, judicial determinations in this regard happen on a more constant if irregular trajectory. Just as most of us were pivoting to virtual classrooms, there were two significant cases that each have the potential to broaden how copyright-protected works can be used in online education. On March 24th, 2020 the Ninth Circuit said in Tresóna Multimedia, LCC v Burbank High School Vocal Music Association that “the defense of Fair Use, if applicable, should cover ‘teaching’ whether in a private or public setting.” The ruling did not distinguish between face-to-face teaching and distance learning, however, importantly the court determined that a work is transformative Fair Use even if “the allegedly infringing work makes few physical changes to the original or fails to comment on the original.” Consequently, an instructor creates a transformative work, arguably regardless of the learning environment, which falls into the protective space of Fair Use, when they craft a message, enhance their students’ educational experience, or educate their students in creating expressive content. The same week as the Ninth Circuit decision the Supreme Court ruled in Allen et. Al. v. Cooper, Governor of North Carolina, et al., that a state could not be sued for copyright infringement by a company that held copyrights in photographs. Justice Kagan wrote for the unanimous court that “Article 1’s Intellectual Protection Clause could not provide the basis for an abrogation of sovereign immunity.” The decision notes that Congress could potentially create that basis, but it currently does not exist. Accordingly, as the law stands, state-licensed schools might not be liable for copyright infringement. Such a ruling could have significant positive impact on an academic institution’s risk management team/legal counsel when involved in making determinations about the acceptability of instructional use of full-length copyright materials in a school’s online teaching environment.
The SCMS Fair Use Committee is attentive to the fact that about 15% of its members reside outside of the United States. Legal developments in the United States often set the tone for what happens in international jurisdictions. For example, after the passage of the US Congress passed the Digital Millennium Copyright Act (DMCA) in 1998, the Canadian government eventually enacted into law the Copyright Modernization Act (CMA) in 2011. While the act broadened the Canadian equivalent of fair use, known as ‘fair dealing,’ it also codified an “anti-circumvention” clause modeled after the DMCA. which explicitly aims to prohibit the playing of DVDs and Blu-Rays on region-free players and computer software. For a detailed look at the Canadian legal issues, see the article by Peter Lester in this dossier, and for a closer examination of the UK context, see Emily Hudson.
The Fair Use Committee has been tasked with updating the fair use guidelines on the SCMS website, and the committee endeavors to conduct an informal survey of the membership through SIGs and Caucuses to facilitate discussions about our similar and varied practices so that we strengthen our existing codes of practices for fair use pedagogy. To conclude, we plan to provide additional resources to guide our members through decision making about their own teaching practices and ways to persuade university partners to support those decisions.
- Links to centers for fair use advocacy: The SCMS website could more prominently support the educational efforts of these institutions—and the work of our members with them— through enhanced visibility on our site.
- Learning Management Systems and Software Aids: We would like to create a resource page where SCMS members provide advice, even tutorials, for how to utilize the fullest capacities of these platforms (resources already created by many of us to help colleagues adapt to remote teaching for the COVID era).
- Models for Fair Use Policies: Many universities remain hesitant to stand at the forefront of fair use advocacy, yet they also tend to be persuaded by examples of what they consider “peer” institutions. Our goal, therefore, will be to provide links or PDFs to fair use documents for as many types of universities, and as many international contexts, as possible.
There are broader questions about the role SCMS, and the Fair Use Committee, may play in the future. The COVID-19 pandemic has intensified and made more visible the challenges facing teachers of media in this moment, but these challenges are unlikely to abate once the immediate crisis is over. To date, SCMS has responded when asked to support our members’ work as advocates for government action on fair use, but the organization may consider becoming more proactive by reaching out to the organizations at the forefront of this work about how we can do more. Moreover, the Fair Use Committee may expand its role to serve as an ongoing clearinghouse for member questions and concerns. Because fair use expands through practice, knowing how our members are enacting its guidelines will help the Society to represent our needs in the years to come.
Michael Aronson is an Associate Professor of Cinema Studies at the University of Oregon and a member of the SCMS Fair Use Committee. His work on exhibition and local filmmaking practices has appeared in a number of journals including, The Moving Image, Film History and the Society’s Cinema Journal.
Lauren Bratslavsky is an Associate Professor at Illinois State University’s School of Communication, where she teaches media criticism, broadcast history, and visual communication. Her research interests focus on media history, media ecology, and hegemonic processes in sitcoms and satire.
Karen Petruska is an Assistant Professor of Communication Studies at Gonzaga University and a member of the SCMS Fair Use Committee. A graduate of Georgia State University, Dr. Petruska has published in Creative Industries, Spectator, Popular Communication, and The Velvet Light Trap. She has also co-edited a special issue of Convergence, contributed to four anthologies, and published online through In Media Res, Flow, Antenna, and MIP Research.
Adam Szymanski is a Postdoctoral Fellow in the Department of Cinema and Media Studies at the University of Chicago and a member of the SCMS Fair Use Committee. He is the author of Cinemas of Therapeutic Activism: Depression and the Politics of Existence (Amsterdam University Press, 2020).
We defer to the legal context of copyright in the United States and the ‘fair use doctrine’ a defense of copyright infringement with applicability determined by four highly subjective and fact-dependent factors, specifically (a) the purpose and character of the use; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion taken, and (d) the effect of the use upon the potential market. ↑
SCMS “Society for Cinema and Media Studies Statement of Fair Use Best Practices for Media Studies Publishing.” Cinema Journal 49.4 (Summer 2010): 179-185.; SCMS,“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.; Thompson, Kristin, along with John Belton, Dana Polan, and Bruce F. Kawin, “Report of the Ad Hoc Committee of the Society For Cinema Studies, ‘Fair Usage Publication of Film Stills.’” Society for Cinema and Media Studies, (1993). https://cdn.ymaws.com/www.cmstudies.org/resource/resmgr/docs/fairusefilmstills.pdf ↑
These types of documents are not limited to SCMS, for we are part of a network of related academic organizations such as ARSC and ICA. See also Association for Recorded Sound Collection’s Statement:https://www.arsc-audio.org/copyright-committee.html and ICA’s Fair Use for Scholarly Research in Communication:https://cmsimpact.org/code/code-best-practices-fair-use-scholarly-research-communication/. ↑
See Aufderheide, Patricia along with Peter Jaszi and Brandon Butler, at the Digital Futures Forum (2012) at American University: Part 1https://youtu.be/lonYZwOg3FU (Part 1)https://youtu.be/hqA_b9UwV9k (Part 2). The remarks in this presentation are also evident in each of the codes posted on the AU’s Center for Media and Social Impact website. ↑
Tresóna Multimedia v. Burbank High Sch. Vocal Music Ass’n. Nos. 17-56006, 17-56417, 17-56419, 2020 U.S. App. LEXIS 9128 (9th Cir. Mar. 24, 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/24/17-56006.pdf. As described in the ruling, “private or public setting” refers to the type of educational institution, whereas “public” refers to a state i.e. public school, in this case, a public high school. ↑
Supreme Court Says State of North Carolina is NO Copyright Pirate in Blackbeard Ruling” Kristin Lamb, March 23, 2020,https://www.ipwatchdog.com/2020/03/23/supreme-court-says-state-north-carolina-no-copyright-pirate-blackbeard-ruling/id=120111/. ↑
Film Studies Association of Canada Association Canadiennes d’Études Cinématographique FSAC/ACÉC, “Statement on Copyright,” June 20, 2008,http://www.filmstudies.ca/FSAC_Copyright_Statement.pdf. ↑