Copyright Questions of the Month. Guidelines versus Statute and DVD Uploads

by Carol Simpson, January 2017

Guidelines v. Statutes

Q: What is the recommended policy on educators making photocopies of copyrighted materials? The Copyright Act of 1976 has some very specific guidelines about what cannot be copied (nothing from a workbook or other consumable, for example, and no copying a whole textbook), and what can be copied (a complete poem of less than 250 words, one copy of an article per student per class with a notice of copyright affixed to each copy, etc.). I am currently researching if any substantial amendments to this law have been made since then that would have an impact on this question. What do you advise teachers to do when photocopying copyrighted materials for students?

A: You are conflating two sets of rules. There is copyright law regarding fair use—the statute (17 USC § 107)—and the print guidelines (the 1978 Kastenmeier Report) that came from a congressional process that was vetted by Congress as expressing the "intent of Congress" following general dismay at the vague explanation of fair use in § 107.

Now, since the Kastenmeier Report is actually a guideline and not law itself, you are likely asking if the guidelines carry the force of law or are they technically just that: "guidelines" which are statements of aspiration rather than regulation? Congress said, in the preface to the guidelines that are in the October 14, 1984, Congressional Record, that courts were to interpret the guidelines as the "intent of Congress." Because the copyright statute is fairly vague, courts frequently have to determine the intent of Congress when hashing out legal situations. So, no, the guidelines are not the law, but they can have the force of law if a court applies them when deciding a case.

Your district likely has a copyright policy that no one has read in years. The policy should say "follow U.S. law" because otherwise they would have to amend the policy every time Congress tweaks the law. As to photocopying limits for teachers, the guidelines are the "intent" of Congress, so I would look to them first in making decisions about what can or should be copied. Additionally, the guidelines are in layman's English, not legalese. But always remember that you can fall back onto that vague section 107 should the hard limits of the guidelines not meet your needs. The guidelines were developed to help explain section 107, not to replace it. If your teacher needs to use more of the material than the hard limits of the guidelines would permit, go through a four-factor fair use assessment and see if there is a viable argument that the use is fair.

Mounting DVD Online for Staff Development

Q: Our school just purchased a book and DVD pack. My principal would like all faculty to watch the DVD, ideally uploaded to our network and protected by a password. Are we potentially infringing on any copyrights?

A: There are some concerns with the plan to upload the video to a streaming server. First of all, see if your use of the DVD is under license, or if it is truly a sale. If your purchase of the DVD is under license (as I suspect), you will need to abide by the license because the license trumps copyright law in almost all situations. If, by some chance, you actually purchased the DVD, you can treat it like any video: lend it, let the borrower view the video in a non-public setting (not a school setting, which is public by definition), use small portions of the video under fair use, etc. Your copying of the video onto a streaming server does not fit any of the exceptions to the right of the copyright owner to control making of copies. The use does not fall under the TEACH Act exceptions, either, because those viewing the video are not enrolled students. For your use, a license that allows you to mount the video on a closed server would be the safest option.

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.