Copyright Questions of the Month: Digital Video Do or Don't

Q: I recently got a digital video device, and it came with the following user license.

Excerpted:

“You represent and warrant that, with respect to all of your Content, (a) you have all the rights and licenses necessary to reproduce, disseminate (and otherwise exploit) such Content in connection with the Technology (and grant to [Manufacturer] the licenses set forth in section 3) and (b) you have the written consent, release, and/or permission of each and every identifiable individual person in such Content to disseminate (and otherwise exploit) their name or likeness. You hereby grant to [Manufacturer] a non-exclusive, worldwide, perpetual, irrevocable, transferable, and royalty-free license to use, reproduce, distribute, prepare derivative works of, display, and perform all of your Content, with the right of [Manufacturer] to grant sublicenses, in connection with [Manufacturer’s websites and [Manufacturer’s (and its successor’s and assigns’) business. You also hereby grant each user of [Manufacturer’s website a non-exclusive license to access your Content through the website, and to use, reproduce, distribute, prepare derivative works of, display, and perform such Content as may be permitted through the websites functionality. [Manufacturer] reserves the right to disable or block access to the Services or access to or dissemination of any Content at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if [Manufacturer] is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not [Manufacturer], remain solely responsible for all Content that you upload, post, e-mail, transmit, or otherwise disseminate using, or in connection with, the Technology. You acknowledge that all Content that you access using the Technology is at your own risk and you will be solely responsible to any damage to any party resulting there from. Further you certify to [Manufacturer] that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Content, and take full responsibility for the selection and use of the Services and to access the Content. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.”

My questions are: Is anything you film with this device now property of the company? Do you lose all copyright by recording original songs, scripts, stories, etc.? Does this mean school students under the age of eighteen cannot use this device to prepare school assignments and presentations?

A: I think, if you will look further, that section applies to their offer to host your content. If they are hosting your content, they can make just about any demand they want, and if you use the site, you have agreed to it. If you don’t put your content within their grasp, I don’t see how they could possibly claim it. Even if you use the site, you are not giving the actual copyright to the manufacturer. They are claiming a “nonexclusive, worldwide, perpetual, irrevocable, transferable, and royalty-free license to use” the video you upload. Similar to YouTube, you grant the hosting company a license to make your works available to the public, and you grant the public a license to view the content you upload. Note, though, that this license is perpetual. So if you upload something and discover later that you should not have done so (for whatever reason), the manufacturer does not have to take down the video. Think twice (and tell your students to think three times and ask an adult) before uploading any video.

TRANSFERRING VIDEO FOR ARCHIVE

Q: Can you copy video tapes and DVDs to computer files to use for playback and have your originals count as the archival copies without violating copyright law?

A: The only medium that allows archival copies is computer software. Video DVDs do not count as computer software, and VHS tapes certainly are not because they are not digital. You cannot archive video unless you purchase archival rights from the copyright owner (and those are generally available for sale on educational video).

HANDOUTS TO THE WEB

Q: I know that web publishing must follow the same rules for fair use that any other form of use for students does. Many of my teachers want to post readings on their websites and save copy paper. I tell them they must use only the appropriate proportions already set out in the fair use rules; that they cannot avoid purchase this way, etc. I saw a brief paragraph from a university library site in a Q&A section that seemed to say that if a section is password protected, you can post an item that a student can then either print or read, assuming other fair use rules are followed. That way the teacher has not published to anyone except their own class. Can I tell my teachers that password protecting a section or piece is an effective defense to restrict access to only their class, if the copyright holder alleges that fair use was not applied?

A: The TEACH Act governs most use of websites for direct teaching, even when the whole course is not online. If the website is unrestricted, the TEACH Act requirements do not apply, and you are stuck with standard fair use since the use is open to anyone, not just for educational purposes. The TEACH Act does require that access be restricted to enrolled students only. And remember that the TEACH Act says that digitizing to avoid purchasing books or reprints is a no-no. Also consider whether you may have a license to reproduce the items, such as when the school purchases a reproduction license with its purchase of textbooks or teaching materials. When purchasing new materials, it is worthwhile to inquire about a license to post materials on restricted sites, so you are always certain about your authority to do these sorts of activities.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district's attorney.