Submission Date:
Question:
I recently purchased a copy of a DVD at the request of a professor. I believe that the professor intends to show this film in class. The DVD is relevant to course materials.
I opened up the case to catalog it, and inside the front cover was an insert ... asserting that a public performance rights license must be purchased to be able to show the DVD even in a classroom setting.
I purchased the DVD believing that the professor's showing would fall under Fair Use, as it would be limited to a specific and relevant educational course, shown only to students registered for that course, in a face-to-face classroom setting, using a legally purchased copy. However, my doubts are creeping in because the wording of the insert makes me wonder if this DVD was legally purchased.
If the producer intended for it to be sold only for home/individual use and expressly prohibits any type of group viewing as part of the sale, is my purchase with intent to use the DVD in a classroom setting illegal? Does this insert override or prohibit what would otherwise be Fair Use?
Thank you for your insight and expertise!
Answer:
Before we jump into things, let me first offer this unambiguous assurance: Doubts, begone! The use you contemplated is allowed by law.
Okay, with that out of the way, let's break it down.
As we have reviewed on “Ask the Lawyer” before,[1] under Copyright Section 110.1, nonprofit education institutions can show physical copies of movies in class,[2] so long as the copy they are viewing was not “unlawfully obtained.”
Or, as the law puts it, it is not infringement for a school to engage in:
... performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
When it comes to what constitutes knowledge of an “unlawful” copy, Congress commented on this in House Report 94-1476:
The exemption [from infringement] is lost where the copy being used for a classroom performance was “not lawfully made under this title” and the person responsible for the performance knew or had reason to suspect as much. This special exception to the exemption would not apply to performances from lawfully-made copies, even if the copies were acquired from someone who had stolen or converted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110(1) in such cases, the copyright owner might have a cause of action against the unauthorized distributor under section 106(3), or against the person responsible for the performance, for breach of contract.
Again: this means the in-class showing contemplated by the member can happen, so long as the school doesn't know the copy was unlawfully made (or didn't make the unlawful copy directly).
From the perspective of an author or owner of a work, this can be frustrating: it means that faculty at a college or university can show a movie, read a poem, or display a painting without the permission that, without the 110.1 exception,[3] might be required.[4]
For purposes of this question, we're going to assume that the use proposed by the member checks ALL the 110.1 boxes:
- The use is for a not-for-profit educational institution;
- The use is by a faculty member or student; and
- The use will be confined to a class in which the students are enrolled (not a student club or an open event on campus).
It also sounds like the school is the owner of the actual physical copy, although that is not required to exercise rights under 110.1.[5]
So, with the member having met all the criteria for an in-class showing (or “performance”) to be held under 110.1, can a notice with a physical copy, saying essentially, “No 110.1 here, you must get permission to play this in class, or we'll sue!” remove the law's protection?
No.
If the law worked that way, every 110 protection from liability for infringement (which ranges from protections for education, to protections for people with disabilities) could be revoked ad hoc. The law might as well cease to exist. Happily, laws usually don't work that way.
Of course, before being able to give such a decisive answer, I checked the most recent case law and copy of the status on LEXIS-NEXIS. 17 U.S.C. 110 has not been amended since 2005. There has never been an opt-out provision that an owner can invoke with a notice on a physical copy. There is no case law that suggests such an opt-out exists.
Although I am able to give a decisive answer to the fact pattern, the member was right to take a pause and check in when they felt unsure. Copyright, especially in academia, can have some odd-twists and turns. But even though this notice tries to pull the rug out from under the feet of educators, 110.1 abides. [6]
[1] See Screening DVD as part of curriculum: https://wnylrc.org/raq/screening-dvd-part-curriculum
[2] Note: this section pertains to in-person class. For online instruction, we need to delve into 110.2, a.k.a. the “TEACH Act” (see Streaming movies in school and the TEACH Act: https://wnylrc.org/raq/streaming-movies-school-and-teach-act).
[3] Small quibble: Use under Section 110.1 is not “Fair Use,” which is governed by Section 107 of the Act. Academic institutions certainly have rights under 107, but I prefer 110, which has much more defined parameters. No balancing test in 110!
[4] Without Section 110, more arguments would need to be made under Section 107 (Fair Use). As reviewed in footnote 3, 110 is much easier to apply.
[5] For other types of entities, and other mediums, some considerations under 17 U.S.C. 109 (governing the sale and rental of copies), could require further assessment as to if the copy was legitimate. But that doesn't apply here!
[6] I love 110.1: it really ties the classroom together.
