Copyright Question: Using Audiovisual Works in a Satellite-Delivered Program

by JAMIE S. SWITZER, Director and RALPH V. SWITZER, JR., Associate Professor Colorado State University Ft. Collins, Colo. The advent of technologies such as cable television, computers, satellites and interactive video is forcing a change in education. No longer must teachers and students be in the same room at the same time for effective instruction to occur. Distance learning is reaching across borders and boundaries to deliver high-quality education to people who formerly had no access to traditional programs. The satellite is a potent instrument in the distance learning field. The College of Business at Colorado State University, in partnership with Mind Extension University: The Education Network, offers a Master's of Business Administration via satellite transmission. Any qualified person in North America can receive an MBA from Colorado State University without setting foot on campus. Breaking New Ground The satellite-delivered MBA program is unique in the distance learning field; no other MBA courses are delivered by means of satellite transmission. As with every new technology, some questions have arisen for which there are no precedents. Of primary concern is the use of copyrighted audiovisual works. The MBA courses are videotaped during regular class meetings on campus. The videotapes are then broadcast via satellite on a delayed basis. Students nationwide receive the courses on television in their own home, either directly off a satellite dish or from their local cable company. The concerns arise when a professor shows a copyrighted audiovisual work in class. That action by itself is legal within certain guidelines. The questions occur when that particular course is then transmitted via satellite. Is it a copyright violation to have that copyrighted audiovisual work, originally shown in class, now broadcast via satellite and carried on local cable systems? Within the Copyright Act itself are clues that will help in examining the issue. However, there have been no court cases to date addressing this exact situation. Copyright Law The primary purpose of copyright is to promote the public welfare through the advancement of knowledge. Granting creators rights to reproduce and distribute their works provides incentives for progress in the arts and sciences. The constitutional basis for federal copyright legislation is the legislative power of Congress, with subsequent interpretations by the courts. Facts and ideas are not copyrightable, but the manner in which that fact or idea is presented is copyrightable. A work must contain some element of originality or creativity of expression. Works of the federal government are generally not copyrightable. Works published more than 75 years ago are in the public domain and no longer protected by the Copyright Act. The first United States Copyright Act was enacted in 1790. Throughout the years, the document was amended and refined. The Copyright Act of 1976 was the fourth major revision, and with its amendments is the effective legislation concerning copyright issues today. In enacting the 1976 Act, Congress noted that "significant changes in technology have affected the operation of the copyright law... The technical advances have generated new industries and new methods for the reproduction and dissemination of copyrighted works..." (H.R. Rep. No. 94-1476, page 47).1 Copyright has traditionally been concerned with the works of the artist, author or composer. Substantial technological changes are putting a strain on the basic copyright scheme because technological changes alter the degree to which the creators can control their works.2 Creators used to be solely responsible for making and disseminating their works to the public. Now it is common for other people to make copies with photocopiers or videotape recorders. The public can reproduce the works themselves. In certain situations such actions are not copyright violations because they fall under the realm of "fair use." Fair Use Fair use can be defined as a public usage of a copyrighted work for which the copyright owner is not compensated because the usage is minimal and is in the public interest.3 The fair use doctrine is codified in Section 107 of the 1976 Copyright Act. The concept is often misunderstood. Copyright holders tend to interpret fair use guidelines narrowly, while users have a broader view. Application of the fair use guidelines is flexible and on a case-by-case basis. Section 107 lists four criteria in determining whether the use of a copyrighted work without permission is a fair use. All four are interdependent. The first factor is the purpose and character of the use. This factor is generally most favorable to educational institutions, professors and students. At one time, a complete exemption for copying by non-profit educational institutions was advocated. Congress decided that a complete exemption was unnecessary, but did amend Section 107 in two ways. They added the phrase "for purposes such as...teaching (including multiple copies for classroom use), scholarship, or research" and also created a standard concerning whether the use was for commercial or non-profit educational purposes. Non-profit educational use carries a presumption of fair use, although that is not always true. If the purpose of the use of the copyrighted work is established to be for educational purposes, the burden of proof is on the plaintiff (creator) to show that some meaningful likelihood of future harm exists. The second factor relates to the nature and type of the copyrighted work. This usually refers to whether the work is published or unpublished, as well as to content, format and style. If the work is considered to be scholarly, the assumption is that the work would be used in an educational context, and therefore a fair use. Since one policy of copyright law is to encourage the dissemination of ideas, copying a portion of a factual work is more likely to be considered fair use than copying a similar amount of a work of fiction. Unpublished works have much greater protection under copyright law than published ones, because the author has not yet intended the work to be disclosed to the public. The third factor is the amount and substantiality of the material used by another. There is no set quantity or percentage limit to the amount of copying. However, if the portion of the work copied is a crucial part of the original, no matter how small the amount may be, it is a violation of copyright law. The fourth factor is the effect of the use of the work. Copying must not impact the marketability of the work or the creator's ability to make a profit from it. The "Guidelines for Off-Air Recording of Broadcasting Programming for Educational Purposes" were adopted in 1979. Developed by representatives of educational institutions, copyright owners, creative guilds and unions, the guidelines apply the fair use principle to the recording, retention and use of television broadcast programs by non-profit educational institutions.4 While allowing programs to be recorded off-air and used in a classroom setting, the guidelines do not provide that "off-air recordings by teachers under fair use be permitted to be intentionally substituted in the school curriculum for a standard practice of purchase or license of the same educational material by the institution concerned."3 Sections 110 and 111 The use of audiovisual works by a non-profit educational institution is governed in part by the fair use guidelines. Judging what is or is not fair use is a subjective decision by the courts. However, there are complete exemptions regarding the use of copyrighted works in the classroom provided by the 1976 Copyright Act. Section 110 lists in great detail how copyrighted works may be performed or displayed in educational situations; Section 111 extends those rights to electronic retransmissions. In order to examine Sections 110 and 111 more closely, several terms must first be defined as used in the language of the 1976 Copyright Act. These definitions are found in Section 101 of the Act: "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film tapes, disks or cards, in which they are embodied. To "display" a work means to show a copy of it, either directly or by means of a film slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. To "perform" a work means to recite, render, play, dance or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. Into the Details Section 110(1) exempts the "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a non-profit 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." In other words, it is legal under the 1976 Copyright Act for a professor to show a videotape in class that was either purchased or taped under the fair use guidelines. Section 110(2) exempts the "performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if - (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a non-profit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for - (i) reception in classrooms or similar places normally devoted to instruction, or (ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment." H.R. Rep. No. 94-1476 (page 85), in further defining Section 110(2), addressed instructional television college credit courses. It stated that "telecourses are aimed at undergraduate and graduate students in earnest pursuit of higher educational degrees who are unable to attend daytime classes because of daytime employment, distance from campus, or some other intervening reason. So long as these broadcasts are aimed at regularly enrolled students and conducted by recognized higher educational institutions, the committee believes that they are clearly within the language of Section 110(2)(C)(ii). Like night school and correspondence courses before them, these telecourses are fast becoming a valuable adjunct of the normal college curriculum."1 Section 111(a)(2) of the 1976 Copyright Act intends to make clear that an instructional transmission within the scope of Section 110(2) is exempt whether it is a "primary transmission" or a "secondary transmission."5 The fact that a broadcast can be received by the general public d'es not preclude it from being defined as instructional broadcasting. H.R. Rep. No. 94-1476 (page 83) states "the instructional transmission need only be made 'primarily' rather than 'solely' to the specified recipients to be exempt. Thus, the transmission could still be exempt even thought it is capable of reception by the public at large. Conversely, it would not be regarded as made 'primarily' for one of the required groups of recipients if the principal purpose behind the transmission is reception by the public at large even if it is cast in the form of instruction and is also received in classrooms. Factors to consider in determining the 'primary' purpose of a program would include its subject matter, content and the time of its transmission."1 The Original Question The original question of whether it is a copyright violation to have a copyrighted audiovisual work originally shown in a classroom broadcast via satellite and carried on local cable systems can now be examined in light of the 1976 Copyright Act. The satellite-delivered MBA program consists of transmitting the videotapes of actual classes meeting on campus. An audiovisual work shown exclusively to that class under the provisions of Section 110(1) would not be a copyright violation. However, the Section 110(1) exemption d'es not apply to "face-to-face teaching activities" that are recorded onto videotape or transmitted, according to H.R. Rep. No. 94-1476, (page 81).1 The satellite-delivered MBA program meets most of the criteria for exemption under Section 110(2), provided the performance was of a nondramatic literary or musical work, or display of a work, by or in the course of a transmission. The question is in the definition provided in Section 101 of "nondramatic literary" work. That definition specifically excludes audiovisual works. H.R. Rep. 94-1476 (page 83) states "the copyright owner's permission would be required for the performance on educational television...of a motion picture...their sequential showing would be regarded as a performance rather than a display and would not be exempt under Section 110(2)."1 Therefore, showing an audiovisual work without permission in a class that is later broadcast via satellite and carried on local cable systems may be a copyright violation. H.R. Rep. 94-1476 (page 83) also states, "The use of commercial facilities, such as those of a cable service, to transmit the performance or display, would not affect the exemption as long as the actual performance or display was for nonprofit purposes."1 Within the language of the law, broadcasting an audiovisual work may be a copyright violation because the satellite-delivered MBA is a for-profit venture for the commercial partner. Conclusion Colorado State University's satellite-delivered MBA program is breaking new ground in the distance learning field. Showing an audiovisual work in a class that is then broadcast via satellite and carried on local cable channels may be a copyright violation under Section 110(2) of the 1976 Copyright Act. However, the use is justifiable and fair within an educational context and criteria set forth in Section 107. Showing a videotape in a distance learning setting should either be classified as fair use, or have its own exemption within the 1976 Copyright Act. Congress has already acknowledged the value and viability of telecourses (H.R. Rep. No. 94-1476, page 84).1 The Copyright Act should encourage the use of any educational materials in distance learning programs. The primary audience for the satellite-delivered MBA program is the students. Classes are transmitted between midnight and early morning, when most people are asleep. Any audiovisual work shown in a class is directly related to instruction. Theoretically anyone with access to a satellite dish or to local cable can watch the broadcast, but the course-enriching audiovisual works will only be relevant to students enrolled in the class. The use of new technologies will continue to be more pervasive in education. If professors are forced into the difficult and time-consuming procedure of obtaining permission from owners before using any copyrighted materials in class, students will be disadvantaged; current and relevant material will be kept from them. The 1976 Copyright Act should be revised and clarified in light of the technologies involved in education today. The current legislation d'es not address such issues. For now, copyright issues in distance learning remain a gray area. Jamie Switzer is the director of Distance Learning for the College of Business at Colorado State University. She is the producer, instructional designer and graphic designer for the satellite-delivered MBA program offered by the College of Business via Mind Extension University. Switzer has presented several workshops in graphic and instructional design and teaching on television and published papers on distance learning. Ralph V. Switzer, Jr., is an associate professor of Accounting and Taxation at Colorado State University. He is a member of the American Bar Association and the American Institute of Certified Public Accountants. Switzer has published books, including The Research and Report Handbook plus articles in accountancy, law and business journals. He has also served as counsel to the U.S. Department of Justice. References: 1. House of Representatives Report No. 94-1476, 94th Congress, 2nd Session. 2. Seltzer, Leon E., Exemptions and Fair Use in Copyright, Harvard University Press, (1978). 3. Talab, R.S., Commonsense Copyright: A Guide to the New Technologies. McFarland and Co., Inc. (1986). 4. Oler, Harriet L., and Kretsinger, Marilyn J., "Copyright Law and the Fair Use of Visual Images." In Fair Use and Free Inquiry: Copyright Law and the New Media, Lawrence, Shelton and Timberg, eds. Ablex Publishing , (1989). 5. Senate Report No. 94-473, 94th Congress, 2nd Session, p. 78.

This article originally appeared in the 05/01/1994 issue of THE Journal.