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Online Educators Enjoy Generous Copyright Exemptions for Video

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The 20 years that have been added to most copyright lifetimes as part of the U.S. Congress’ 1998 Sonny Bono Copyright Term Extension Act are now in the past, so on Jan. 1, 2019, all films, books, and other creative works first published in 1923 finally entered the public domain. The clock once again starts moving forward with 1924’s materials to enter next year, and so on. The 20-year hiatus was extended to align copyright law in the U.S. with copyright law in Europe, although its end is cause for celebration as materials in the public domain are free to use for any purpose without paying royalties.

In an educational environment, special copyright laws apply, and navigating them responsibly has been a major challenge in higher education for many years. As the adoption of online instruction grows in K–12 education, especially as proposals to replace snow days in cold-weather districts with online learning days gain traction (and presuming the digital divide narrows), copyright laws will be of greater interest to all teachers.

The most important of these laws is U.S. Title 17, Section 110(1), which provides a very broad copyright exemption for teachers in face-to-face classrooms at not-for-profit schools. Teachers in such cases can play any film or video that they legally acquired. A lesser-known exemption is the adjacent Section 110(2), an amendment to copyright law known as the TEACH ACT of 2002, which attempted to extend a similar exemption to online classroom environments. Threading the needle between protecting copyright holders and enabling the education of the next generation of content creators is much more complicated with online distribution than simply wheeling the TV cart into the classroom. To wit, section 110(1) contains 84 words in a single clause; section 110(2) extends that clause by 370 words containing, at one point, sub-sub-sub-sub-sections clarifying technological measures that must be in place by the streaming media host to keep the toothpaste in the tube.

In spite of the complexity of Section 110(2)’s composition, it’s an important, yet underappreciated, part of copyright law. In essence, it allows a class at a not-for-profit school instituting legally compliant copyright policies to stream a portion of a film, so long as the streaming media technology used reasonably restricts access to students in the class and prevents them from making redistributable copies of the video. Since the intent was to harmonize online instruction with face-to-face instruction, the portion must be comparable to what would be shown in the equivalent face-to-face class setting.

Another law that specifically benefits educators is section 1201, added to Title 17 in 1998 as part of the Digital Millennium Copyright Act (DMCA). Among other things, section 1201 delegates elaboration of exemptions for who can legally bypass copy protections on multimedia materials to the Library of Congress. The Librarian of Congress publishes new rules in October of every third year, most recently in 2018. This publication is quite readable to the layperson and worth studying by school librarians and teachers whose instruction strongly benefits from showing students film clips. Every three years, fairly generous exemptions are renewed and expanded for teachers and librarians to circumvent access controls on DVDs and Blu-rays in order to make reasonable use of the copyrighted content on them. The exemptions published in 2018 were widely celebrated in the “Right to Repair” community, but also notably provided helpful exemptions for video content packaged with ebooks. These exemptions are critical, since the benefits of the TEACH ACT are of very limited use if it is illegal for teachers to bypass copyright protections on the source video material to put noninfringing portions onto a compliant streaming host.

Beyond these laws, teachers and classrooms enjoy the same benefits that the public does. In almost all jurisdictions, it is legal to simply link to any online video on a third-party host, so long as the website isn’t obviously illegally pirating. The risk is that the material can be taken down without warning, either because it was in fact illegally hosted or because the content owner cycled it off its website.

[This article appears in the January/February 2019 issue of Streaming Media Magazine as "Copyright Exemptions for Educators."]

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