Copyright Questions of the Month. Showing Khan Academy and YouTube Videos in the Classroom

Q:  Our school implemented a policy last year that teachers must get approval for all videos that they show. Are there any guidelines about how much teachers can show of a video in the classroom when using a video from Khan Academy or YouTube?

A:  When you say “in the classroom,” in my answer I will be assuming that you mean “for direct instruction.” This showing will not be for reinforcement, reward, independent study, or recreation. 

Section 110(a) of current copyright law addresses showing videos/films/movies (from whatever source) in schools. This section identifies five factors that must be present before a school showing is exempt from the requirement to get public performance rights before showing the program. The section itself is short:

Notwithstanding the provisions of section 106 [giving copyright owners exclusive rights to perform a work publicly], the following are not infringements of copyright:

(1)   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[.]

17 U.S.C. § 110.

So within this section you find five conditions that must be met before a movie may be performed in a school without paying performance rights or getting permission. Should a copyright owner accuse your school of infringing the owner’s rights in a movie, you would have to show the following in order to bypass the copyright owner’s exclusive rights:

(1)   You are a nonprofit educational institution;

(2)   The movie was performed by students or teachers in a class (not as part of an extracurricular activity);

(3)   The showing took place in a classroom or other instructional place (e.g. library, cafeteria, gym);

(4)   The copy used to show the video was legally acquired, either by purchase or by loan from someone else who had purchased it (such as a parent or a public library); and

(5)   The movie was used as a material part of direct instruction (face-to-face teaching activities).

Notice that nothing in the statute indicates that only a portion of the video may be used in the showing if it complies with the five factors above.  And this is how the section has been interpreted over the years since it was enacted: a qualifying showing is not limited to only a portion of the work, just as a performance of a non-electronic work (such as reading a book aloud) has been a part of classroom instruction for centuries. Don’t confuse this section with the limitations on use of electronic works in section 110(2) (the TEACH Act online education permission) or those found in the Multimedia Guidelines (discussed in the November 2015 issue of this column). Rules vary depending on medium and type of use, so always do that analysis and identify the applicable rules before applying rules to a proposed use of a copyrighted work.

Not So Fast

But let’s return to your question. You specifically asked how the statute would apply to videos from Khan Academy or YouTube. Whenever you are dealing with online material, remember that you may be (and likely are) accessing those works through a license. It has been settled law for about twenty years or more that using website content or software that requires you to “click through” to accept terms and conditions makes your access to the content subject to those terms and conditions. In that case, section 110(1) would not control your use of the online content as much as the terms and conditions to which you agreed by using the site. 

When you sign up for a Khan Academy account, you click past a screen that says by continuing to sign up you agree to the Terms and Conditions and Privacy Policy, both of which are hot links to take you to the documents to which you are agreeing. Did you read those documents? For Khan Academy, pay particular attention to sections 7 and 8. For YouTube, pay attention to sections 4 and 5. You can disregard any license terms regarding public performance under the Act because section 110(1) exempts you from having to comply with those requirements if you meet the five factors described in the statute.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools.  Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state.  Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.