Copyright Questions of the Month: iTunes in the Classroom

Q: Several of the teachers in my building have asked if they can show video in their classrooms that they have purchased on iTunes and now have on their iPods or laptops. I couldn’t find anything in the FAQ, copyright, or any of the agreement sections of iTunes that specifically addresses this. My answer to them is that if they follow the fair use guidelines, and since they have a legally obtained copy, it would be okay to show it. What do you think?

A: Barring some specific license for an individual video (which sometimes happens), any legally acquired video may be used for direct instruction if you meet all the requirements of section 110(1) of copyright law. Section 110(1) sets the five factors that must be met for a given showing to qualify for an exemption from the requirement to have public performance rights for a video showing at school. The five factors are:

1. The performance must take place in a nonprofit educational institution.
2. The performance must be for students and teachers in a class.
3. The performance must take place in a classroom or other instructional place.
4. The performance must be made from a legally acquired copy of the work.
5. The performance must be a material part of direct instruction.

Note that you must meet all five of these factors before a showing qualifies for an exemption from required public performance rights.

FOR-PROFIT SCHOOLS

Q: I work at a for-profit private institution and there have been some copyright questions lately within the organization. I am trying to determine where for-profit schools fall with respect to copyright.

A: For-profit goes to one of the four fair use factors. You just lose the advantage that schools get on that factor. Of course you don’t generally get to apply some of the guidelines and legal provisions tailored for nonprofit schools specifically, such as the 110(1) AV use provisions (they require nonprofit status), the multimedia guidelines (they require nonprofit status) and the TEACH Act provisions (which also require nonprofit status). But you still get standard fair use (the four factor balancing test), so apply that when you start to make an analysis.

YOUTUBE VIDEOS FOR NON-INSTRUCTIONAL USE

Q: I had a request this morning to download a YouTube video for Veteran’s Day and put it on our video announcement feed that is located in the hallway. My gut is telling me that this isn’t legal. It is not being used as a part of face-to-face instruction. It would be looping throughout the day on the holiday. It would be taken down two days later when I go into the building (I serve several buildings).

A: You can always do a fair use assessment. Just because a video showing doesn’t meet the section 110(1) exemptions above doesn’t mean it can never be used. Schools can still do a standard fair use assessment. Nevertheless, it’s very easy to contact folks who mount videos on YouTube. Why not just ask? I can’t see them turning you down.

WEBPAGE IMAGE RESTRICTIONS

Q: Our school is preparing a PowerPoint presentation for our staff and would like to include a couple of photographs found on the websites of the CDC and a couple of medical schools. The nurse helping with the presentation says that one of the websites said that images could be downloaded for one-time use only. I believe this situation does meet the criteria for fair use since it is for nonprofit educational use. The sites where the images were found are also educational, and only a photo or two are being used from any particular website, so it is not a substantial amount of information found on that website. Have I analyzed this situation correctly? Also, could her use be interpreted as one-time use if she uses an image in the PowerPoint, shows the presentation one time, and then destroys it? I told her she needs to include a slide giving credit to the websites from which she got the images and that she should go ahead and email the webmasters for permission.

A: If the website is putting conditions on the use of the images, you are getting them under license and are not using them under fair use. You are stuck with whatever the conditions of the license say. Think about it like a Flickr Creative Commons image. You are getting to copy those images under the terms of the specific Creative Commons license the copyright owner applied to the image. Now, she could show the website live, which would be a fair use; but it appears that they don’t want someone copying and redistributing their images, which is their right. I’d certainly say that the nurse’s use would be a one-time use, but I haven’t read the license. You might also take a look at the multimedia guidelines for documentation directions.

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.