Are You Breaking the Law?
Copyright Guidelines for Video Streaming and Digital Video in the Classroom
Editors' note: The information contained in this article is not legal advice. You should consult your school district's attorney if you have legal questions that relate to the issues addressed in this article.
A recent Quality Education Data (QED) study showed that video streaming is the No. 1 technology being evaluated by educators this fall. But, with this new technology comes the responsibility of educating teachers about copyright laws related to the use of video in the classroom. While the benefits of video streaming in the classroom mean more flexibility for teachers, it can also entail more challenges for administrators to protect their schools from copyright infringement.
Are your teachers following the Fair Use Guidelines, the TEACH Act, the Digital Millennium Copyright Act and, most importantly, the subscription licenses you hold? In the past, businesses have held school districts accountable for their employees' actions, so it is important to know about copyrights for digital video use in the classroom. This article will provide some understanding of how copyright laws affect you and your schools. Interpretations of existing copyright laws as they pertain to digital educational video will be provided, as well as additional resources to educate your staff and students on copyright requirements.
While we as technology coordinators, librarians, media specialists, staff developers and administrators are not necessarily accountable for the copyright infringements of our colleagues, we are regarded as the copyright experts. First and foremost, it is important to read your vendor license agreements, because every license is written with a unique set of rules that end users must follow. This license is a binding contract between your school and the copyright owner. Most importantly, the license may override existing copyright laws.
Vendors, who may or may not be the copyright owner, consider the needs of all parties when writing license agreements. They take into account teachers', students' and the copyright owners' needs and concerns, as well as the copyright laws. For example, some video streaming licenses ask that end users maintain the intent of the videos; therefore, no video editing software can be used. However, end users may freeze-frame a video and use the frame for instructional purposes in the classroom, while in some cases displaying the video content on the Internet is acceptable as long as the Web site is protected via firewall, realm, or user name and password.
'Fair Use' Guidelines
According to Simonson, Smaldino, Albright and Zvacek (2003), one of the myths concerning copyright is that "the doctrine of Fair Use means that copyrighted materials can be used in an educational setting without permission." Unfortunately, ignorance is not bliss when it concerns copyright. How many times have you heard fellow educators discuss copying and sharing print materials, videotapes, audiotapes, software and downloaded materials? Perhaps they show videotapes to their class on Friday afternoons as a performance reward or copy videotape clips to a CD to use as a curriculum enhancement. Even when used under the guise of education, these activities may violate the copyright law.
U.S. Copyright Law, Title 17, Chapter 1, Section 107 (www.copyright.gov/title17) provides guidelines for fair use: "The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The copyright law lists four characteristics teachers should know to determine copyright infringement:
1. The purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
Streaming video is not much different than using a VHS player and TV monitor in that you are publicly distributing video through your computer monitor. Unless the copyright owner has given special permission, digital video may only be used for instructional purposes in the confines of a classroom, library or auditorium. Instructional purposes would include research, demonstration, comment, criticism and news reporting (Lutkzer and Rapp 2002).
You may not use the video in a public performance - whether or not you are charging admission - and you also may not redistribute the content or alter the digital video in any way. Altering includes removing sounds, adding or changing images, or using the video in editing software. Check your subscription license agreement, because the owner of the video may or may not give permission for using the digital video in Web pages or other multimedia projects and/or for distance learning.
The TEACH Act
The Technology, Education and Copyright Harmonization Act, aka the TEACH Act, was passed in November 2002. The purpose of this act is to support the changing trends in teaching - especially distance learning. You may have noticed that some free and subscription-streaming services only allow you to stream their content. The reasons for this are many, but one reason is to have control over the distribution of the content. In addition, there are other companies that provide the ability to download videos.
There are several advantages to this, but many implications and questions still exist surrounding archiving and redistribution rights such as whether or not you can archive a copy of a digital video for classroom use. The answer is: it depends. The best solution is to review your license. According to an interpretation of the TEACH Act by Kenneth Crews (2002), professor of law at the Indiana University School of Law-Indianapolis, the new TEACH Act allows one archived copy to be maintained, but it cannot be available on the Internet once a course is finished. You may find that the license gives your district greater flexibility in some instances than the TEACH Act.
To address the needs of teachers and students regarding the use of video clips in a variety of ways through Microsoft PowerPoint lessons, projects, electronic reports and other such applications, it is necessary to allow for the downloading and storage of video. But, many schools and libraries do not have sufficient bandwidth to allow for acceptable video streaming quality. Applications that provide downloading at night when schools are not in session eliminate the bandwidth issue.
Video streaming providers will soon also have another tool at their disposal to protect copyrighted material. A Digital Rights Management system similar to the Microsoft Windows Media Rights Manager will be available as early as this fall. Here is an example of how a DRM system will work: If a subscription is not renewed, the DRM system is activated when the subscription license term expires. Then, the DRM will not allow the video to play unless the subscription is renewed. This protects the copyright holder, while also protecting the schools from unintentionally committing copyright violations.
Obtaining educational video content is easier than ever before, but with this ease and flexibility comes additional responsibility. With the passage of the DMCA and the subsequent TEACH Act, legislators are struggling to provide timely legal protection, constraints and boundaries for content creators as well as consumers.
While fair use allows educators some freedom to use materials in classrooms without permission, there are confines within the Fair Use Guidelines. Educating yourself and your colleagues about copyright and fair use will help save time and worry for you and your district. The application of Fair Use Guidelines in your district will also demonstrate support for creative artists' work by providing these artists with the security of knowing their work will be protected.
Crews, K. 2002. "New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act." American Library Association.
Lutzker, A. and A. Rapp. 2002. "Digital Battlegrounds: The Streaming Frontier." AIME News. Summer.
Simonson, M., S. Smaldino, M. Albright and S. Zvacek. 2003. Teaching and Learning at a Distance: Foundations of Distance Education. Upper Saddle River, N.J.: Merrill/Prentice Hall.
If you are one of the many technology coordinators evaluating video streaming this fall, United Learning is providing T.H.E. Journal readers a free two-month trial subscription. To register, visit www.unitedstreaming.com and enter pass code "F1E0-A5D4."
Online Resources for Educating Teachers, Students About Copyright and Fair Use
This article originally appeared in the 10/01/2003 issue of THE Journal.