Fair Use - Frequently Asked Questions

Please be aware that this is not legal advice.

I want to show a full-length feature film to students in my classroom. Do I need to seek permission from the copyright holder before I do this?

Section 110 of the Copyright Act (1976) allows you to screen a full-length feature film to your students in a face-to-face teaching situation as part of a regular course of instruction without seeking permission from the copyright holder.

I want to show clips from a movie to students during my classroom presentation and I also want to post these clips on Panopto so that they can have access to them for further review and study.

The TEACH Act allows for the performance of a "reasonable and limited amount" of a motion picture as part of the systematic mediated instructional activities of an accredited nonprofit educational institution, providing that a number of conditions and requirements have been previously met by the institution. One condition is that the clips be accessible only to students in the course, so be sure to post it in Panopto, and restrict access to students in your class. A full list of the conditions and requirement may be found by following this link to Louisiana State University Libraries' TEACH Toolkit: https://www.lib.lsu.edu/services/copyright/teach/index

Additionally, a 2006 exception to the Digital Millennium Copy Right Act of 1998, which is currently in place and which will be reviewed in 2018, allows "college or university professors" to circumvent DRM software in the course of creating these clips, providing that the film does not already exist in digital format.

Does it matter if the videos that I show in class or use to make the clips come from the library collection or from my own personal collection?

The most important requirement is that your copy of the film has been "lawfully made or acquired" (Section 110 (1)) or "legally acquired" (TEACH ACT). You should not use a copy that was not legally purchased from an authorized vendor or borrowed from a library or legitimate commercial operation.

Can I digitize a full-length film or video and make it available via streaming media to my students enrolled in my class, so I don't have to dedicate limited classroom time to a screening?

In 2014, Visual and Media Arts faculty approached the Office of College Counsel about the limited-time, password-protected use of copyrighted material for educational use. More specifically, the faculty wanted to be able to assign full-length films for homework and stream them over Panopto, instead of screening them in class. Their question was referred to outside intellectual property counsel, who responded that we cannot legally do the kind of streaming they proposed. The reason is that the Digital Millennium Copyright Act has no fair use provision and the courts have consistently refused to create one. Further, the DMCA states that it is "unlawful to circumvent a technological measure that effectively controls access" to a copyrighted work.

The good news is that the DMCA exemption discussed under question 2 permits such decryption specifically for the purpose of "making use of short portions of a motion picture for the purpose of criticism or comment" in instances that include "educational purposes in film studies or other courses requiring close analysis of film and media excerpts...." That exemption is in effect until October 2018, when it will be re-examined. To be clear, the exemption does not permit decryption for the purpose of streaming entire films.

There is, however, one scenario where DRM can be broken and the entire film can be streamed to a student enrolled in your class. This is allowed when a request for an accommodation from a student in your class has been approved by Student Accessibility Services. Under this scenario, DRM is broken in order to add subtitles to a DVD that is not captioned. For more information, please contact sas@emerson.edu

Can I make a DVD copy of a VHS tape?

Not unless the title you have is no longer available for purchase, or not available at a fair market price. If you have determined that the title is unavailable, and at physical risk, or in an obsolete format, like Umatic tape, you may be able to go ahead and migrate formats. Note, however, that the requirements for use of replacement copies under 108 is narrowly defined. Please check http://www.copyright.gov/title17/92chap1.html#108 and http://www.librarycopyright.net/108spinner/

Can I transfer a PAL tape to an NTSC tape, so I can use it in class?

No, because transferring a work from one format to another is technically what the copyright law considers "derivation" -- one of the exclusive rights of the copyright holder. Format transfers are only allowable under provisions of Section 108 of the copyright law (which has to do with making copies of works in obsolete formats, or legally acquired works which are at physical risk and which can no longer be purchased at fair market prices).

The short answer is you can't transfer from PAL to NTSC (US standard), or from tape to DVD if the work in question is under copyright and still available for purchase in ANY format.

I have a question that is not answered here. Who should I contact?

Feel free to contact the library copyright team (copyright@emerson.edu), ITG (itg@emerson.edu), or Bob Fleming directly (robert_fleming@emerson.edu) with any Fair Use questions.