This summer saw a change in the interpretation of a portion of the Digital Millennium Copyright Act. The change specifically affects instructors using a small portion of video in the classroom and how they may acquire those video clips. If this issue interests you, please read on.
Background: Over the summer, there was a lot of excitement over a “change” in the copyright law specifically regarding the use of video in instruction. The event was not so much a change in the law as a change in interpretation…from someone who has the authority to reinterpret. The Librarian of Congress has the authority to designate “classes of works that will be subject to exemptions from the [copyright] statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work.”
The Librarian may “determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works” (italics added throughout for emphasis).
In July 2010 the Librarian “designated six classes of works” that “Persons who circumvent access controls [e.g., copyright protection] in order to engage in noninfringing uses of works…will not be subject to the statutory prohibition against circumvention.”
The very first class of work listed was “Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos”
In a closing comment, the Librarian stated that “All of these classes of works find their origins in classes that [were] designated [earlier], but some of the classes have changed due to differences in the facts and arguments presented in the current proceeding. For example, in the previous proceeding [the Librarian] designated a class that enable film and media studies professors to engage in the noninfringing activity of making compilations of film clips for classroom instruction. In the current proceeding, the record supported an expansion of that class to enable the incorporation of short portions of motion pictures into documentary films and noncommercial videos for the purpose of criticism or comment, when the person engaging in circumvention reasonably believes that it is necessary to fulfill that purpose. I agree with the Register [of Copyrights] that the record demonstrates that it is sometimes necessary to circumvent access controls on DVDs in order to make these kinds of fair uses of short portions of motion pictures.” (italics and underline added for emphasis)
What does this mean? Faculty at not-for-profit educational institutions may use small portions of video for instructional purposes even if they must use DVD rippers (see http://en.wikipedia.org/wiki/DVD_ripper) to break the encryption. The ruling does not address what constitutes “fair use,” it only allows circumvention of copy protection to obtain clips, when the use is legal. So combining this ruling with provisions of the fair use provision, the Digital Millennium Copyright Act (DMCA) and the T.E.A.C.H. act would suggest these guidelines for faculty and technical support staff:
- The video/DVD must be legally obtained (not an illegal or bootleg copy).
- The video must not be available and marketed specifically for on-campus or online classroom use.
- The video clips used must be for educational purposes only; that is, used to meet specific course objectives.
- The video clips, if delivered via digital (electronic) technology, must only be accessible to and restricted to currently enrolled students through password protection (such as provided by a learning management system) or similar technological methods.
- When DVDs or other media formats are protected by anticopying technology (such as CSS, a content scrambling system frequently used for DVDs), that protection may be circumvented if the resulting use of “short portions of motion pictures” is for lawful educational purposes. The instructor will not be in violation of the anticircumvention provision of the Digital Millennium Copyright Act (DMCA, 1998) based on the recent rulemaking by the Librarian of Congress.
- The rulemaking exemption also permits instructors to use ripped content in non-classroom settings that are protected under “fair use” such as presentations at academic conferences.
- In summary: copying and performing film clips in the classroom is not an infringement of copyright and appropriate methods may be employed to circumvent the copy protection, if the use complies with the fair use provisions of the copyright act.
- Phrased another way: “The question, essentially, was: did the breaking of encryption on a DVD for a fair use of the content violate copyright law? The answer is now ‘no.’ And that answer is a very good thing for higher education. With the uncertainty lifted, film studies professors -- or any instructors or students who wish to use encrypted digital materials -- may now do so without fear of litigation, so long as fair use covers the content.” (see Milano, Inside Higher Education, below)
- Finally, these new exclusions to copyright are in effect for 3 years and then the Librarian of Congress must review and renew or change the ruling.
Final note: Nothing in this rulemaking establishes that instructors or institutions may freely convert an entire VHS (analog) tape or video to a digital format either for archival purposes or for classroom use. However, it’s clear that small portions of legally obtained analog video may be digitized for classroom use.
Sources for this article include:
- “The Best of Copyright and VideoLib” by Carrie Russell from Library Trends, Vol. 58, No. 3, Winter 2010 (“Current Trends in Academic Media Collections and Services,” edited by Ciara Healy), pp. 349–357, © 2010 The Board of Trustees, University of Illinois)
- the July 26, 2010 Librarian of Congress news item “Announces DMCA Section 1201 Rules for Exemptions Regarding Circumvention of Access-Control Technologies” (see http://www.loc.gov/today/pr/2010/10-169.html)
- “Movie Clips and Copyright” from the July 28, 2010 issue of Inside Higher Education (see http://www.insidehighered.com/news/2010/07/28/copyright) and
- “What the Copyright Ruling Means” by Tracy Milano from the July 27, 2010 issue of Inside Higher Education (see http://www.insidehighered.com/blogs/law_policy_and_it/what_the_copyright_ruling_means).