The Copyright Implications of Using Video in the Classroom

Abstract

Professor K is at home one evening when a cable TV channel airs a documentary on media coverage of overseas famine. He puts a blank tape in his VCR and makes a copy. Professor K is impressed with the documentary and decides to show it in his Mass Communication in Society class. The only problem is, the program closed with a copyright protection warning and a graphic offering the program to individuals and school libraries for $59. Now Professor K wonders: Must he wait weeks to obtain formal permission or, worse yet, try to persuade his department to tap its bleak budget to purchase a videotape that he already has in his possession? If he cannot show his own copy of the documentary in class next week, then he has lost an excellent teaching tool. In fact, he would like to archive his videotape and use it in future semesters, too.The Copyright Act of 1976 gives creators an initial exclusive right to their works and the authority to control the use of those works by others. But Congress provided an escape clause that permits educators, journalists, and critics to use limited amounts of copyrighted work without permission, if it qualifies as a use.(1) The fair use doctrine is the law's attempt to recognize the Constitution's intent to balance the exclusive rights of the creator with the promotion of learning in the public interest.(2) For educators in particular, this demarcation line between the punishable and the permissible can be unclear, and its lack of clarity is especially pronounced when applied to new technologies.Educators now have access to technologies that provide both new information sources and new methods of copying, adapting, and transporting information into the classroom. Yet copyright law gives limited guidance regarding these technologies. In Professor K's case, he could obtain permission to show his home video in class (after a probable delay), buy the official video (at certain expense), decide on his own that this qualifies as a fair use (thus taking a deliberate risk), or not use it at all. If he opts not to use it because of uncertainty or fear of illegality, then copyright law has diminished the process of education.This article assesses faculty use of off-air video in the classroom and faculty perceptions of what copyright law permits in the classroom. Those perceptions then are compared to case law and, where case law does not exist, to the analysis of three copyright scholars. The purpose is to help educators properly interpret and apply existing copyright law to the use of videotape as an instructional tool.Evolution of 'fair use'The Copyright Act of 1976 was the first codification of fair use, the battle cry of today's educator. A legal concept dating back to the 1700s, fair use is the allowance for third-party uses of copyrighted material for the purposes of criticism, scholarship, research, news reporting, or teaching. Yet rather than stabilizing fair use as a universally understood legal concept, the Copyright Act seemingly has further confused academia. Justice Blackmun, among others, called fair use the most troublesome [doctrine] in the whole law of copyright.(3)The first appearance of the term fair use came in an 1839 British case in which the defendant contended the duplicated portion of the plaintiff's work was a fair use because he had access to the same sources anyway.(4) Two years later the components of fair use were characterized in the landmark American case Folsom v. Marsh.(5) The presiding judge wrote that fair use demanded an examination of the nature, quantity, and quality of the material used and the effect on the value of the original. These factors were applied with differing interpretations by U.S. courts during the next 100 years, with the original components of fair use remaining relatively intact.(6) Before fair use was statutorily defined in 1976, the Supreme Court did hear two cases using fair use as a defense. But both cases ended in a 4-4 tie, which meant they failed to establish precedent. …