Sure! Off of the top of my head I can think of three. The Google Books lawsuit and the HathiTrust lawsuit are also both good examples. In both cases the scanning of millions of books in their entirety was found to be a fair use. There is also the Bill Graham v. DK lawsuit, where courts found the republication of concert posters to be fair use.
Again, I caution you to not try to limit the application of the TEACH Act based off of perceived limitations on the application of fair use. They are two different statutes and I think it's unwise to try to limit the application on one based off of the language of another. My view is that an instructor can always consider utilizing the TEACH Act for providing a copy of a work to students online, be it in part or in its entirety. Working through the points of compliance and the language of the law will help them determine if their use can be made under the Act. I personally don’t find the quote in the congressional report to be vague or nuts. To me they are saying that you do need to consider the amount of the work that is relevant to the educational goal and use only that. Say there is an instructor who is teaching an online Computer Generated Imagery (CGI) class and wishes to stream Peter Jackson’s The Fellowship of the Ring in its entirety for their students. There are certainly lots of scenes in this movie that incorporate CGI, but there are also lots of senses where hobbits are wandering through pastures and there is no CGI used. Under the TEACH Act I think the instructor would be able show clips of the scenes where CGI is used but, in my opinion, the parts of the movie that have no CGI would not seem relevant to the educational goals of the class so I would discourage them from using those. As for your Citizen Kane example… I would say you would need to talk with the instructor to find out their instructional needs and then work carefully through the TEACH Act to see if it could be applied to the situation. As with almost any copyright questions you can’t generalize and say “Sure that’s ok!” You need to examine the facts of each situation, see what exemptions may be applicable, and then work from there. I don’t want to tie-up the list with back-and-forth so I’ll conclude by climbing up on a soap box and saying that fair use and the TEACH Act are exemptions that are extremely applicable in higher education. When wanting to share copyrighted works with students I encourage instructors and librarians to consider them both carefully and apply the law in a thoughtful manner. I think that as librarians we are here to promote and champion access to information. When we curb our practices out of fear of “what if I might get sued” or based off of bad copyright information we are keeping ourselves from achieving this goal. I’m certainly not encouraging anyone to break the law in the name of information advocacy! Rather I’m saying that Congress gave us these exemptions to help us fulfill this mission and I think that should always thoughtfully consider their application to a situation. Best, Carla From: [email protected]<mailto:[email protected]> [mailto:[email protected]] On Behalf Of Jessica Rosner Sent: Friday, August 21, 2015 8:17 AM To: [email protected]<mailto:[email protected]> Subject: Re: [Videolib] Copyright question: American Playhouse Films Carla Other than the Sony case can you please site any case in which an entire work of length (not a single photo or a few minutes of media) was ruled to be "fair use" such as a entire book or feature film?The GSU (and Google) case are both the most recent and exactly on point. The phrase "relevant toward achieving a educational goal” is so vague as to simply obliterate copyright protection. Surely showing Citizen Kane to an intro film class would fit that criteria so why pay Swank to stream it? Is that your view? On Fri, Aug 21, 2015 at 10:08 AM, Carla Myers <[email protected]<mailto:[email protected]>> wrote: Hi, Jessica The report I cited was put out by the Congressional Research Service. Their job is to “provide policy and legal analysis to committees and Members of both the House and Senate.” If the CRS, acting in this capacity, determines that the full use of a film may be acceptable under the law that’s good enough for me! I’m not saying this allows anyone to post full versions of films online willy-nilly. You need to meet the points of compliance of the Act, apply the law thoroughly and thoughtfully to the situation at hand, carefully think how much of the work is needed to teach a subject, and then only stream that amount. If an instructor only needs short clips or half the film to teach a lesson then that’s all that should be made available online. However if they can provide strong justification as to why viewing the entire film is “relevant toward achieving a educational goal” then this report seems to be supporting that particular type of use under the Act. The TEACH Act and fair use are different statutes and I think it is extremely difficult and slightly dangerous to argue that the language of one limits to other. The “reasonable and limited” language is found in the TEACH Act, not the fair use statute. The language talking about the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” is the third factor of fair use and is not found in the TEACH Act. If fair use could be limited by the language of the TEACH Act then folks utilizing it in any capacity, not just educationally, would need to find an instructor to supervise the use. The TEACH Act applies to the online use of works, so if it’s language was applied to fair use then all fair uses would have to be conducted online. The language of these statues should not be mixed. Rather each exemption should be applied to each individual situation to see which one could be utilized to accomplish a goal. You cite the GSU case as evidence that fair use does not allow the use of an entire work but don’t forget there have been numerous lawsuits where the courts have found reusing an entire work to be a fair use. I think it’s better to take a look at the legislative history of fair use then pick one particular case and let that guide all of your practices. Best, Carla From: [email protected]<mailto:[email protected]> [mailto:[email protected]] On Behalf Of Jessica Rosner Sent: Thursday, August 20, 2015 12:40 PM To: [email protected]<mailto:[email protected]> Subject: Re: [Videolib] Copyright question: American Playhouse Films Wow First the youtube copy was NOT a legal copy so you can never use it. Second the idea that if a "film’s entire viewing is exceedingly relevant toward achieving a educational goal.” it is OK to stream an entire film is well nuts and goes against both the words of the TEACH ACT itself and established copyright law including the two very recent cases of Georgia State and Google books where the courts were VERY clear that only portions of larger works could qualify as "fair use". While there is not exact amount that can cover every case both of the above were again crystal clear that there were limitations and ironically one of main elements in the history of determining "fair use " in those and other cases is if the use infringes on the core or heart of a work, thus several of the GSU uses were determined to violate fair use. I don't see how entire work is a "reasonable and limited portion" let alone one that does not get to core of copyrighted work. If it was OK to stream a work for being "exceedingly relevant towards achieving and educational goal" copyright at least in education would cease to exist and there would also be no point in deciding "fair use" if it covered entire films or works as long as they were for education. On Thu, Aug 20, 2015 at 1:58 PM, Carla Myers <[email protected]<mailto:[email protected]>> wrote: Hi, Lowell The TEACH Act does not actually forbid the use of an entire audiovisual or dramatic work. Rather it states that you can use "reasonable and limited portions" of these types of works. Keep in mind that some thought needs to go into the use of the entire audiovisual or dramatic work. A congressional report put out in 2006 states that: “Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal.” If you want to consider utilizing the TEACH Act to providing streaming access for this film keep in mind that your institution must satisfy the points of compliance outlined in the Act. Peggy Hoon from UNCC has put together an wonderful informational website on the TEACH Act and developed excellent checklists that can help you work through the points of compliance: http://copyright.uncc.edu/. And, as others have pointed out, you can also consider fair use for streaming the film online! Best, Carla From: [email protected]<mailto:[email protected]> [mailto:[email protected]<mailto:[email protected]>] On Behalf Of Jessica Rosner Sent: Tuesday, August 18, 2015 2:53 PM To: [email protected]<mailto:[email protected]> Subject: Re: [Videolib] Copyright question: American Playhouse Films Well for starters youtube is not a legal copy so you can't use that andyou can't use an entire drama under the TEACH act even if you found a legal copy, basically you will have to try to find out who the owner is and if they will license it though older TV titles tend to be very difficult to track down Lastly it is not public performance rights but streaming rights you would be looking for. Jessica On Tue, Aug 18, 2015 at 4:40 PM, Lowell Lybarger <[email protected]<mailto:[email protected]>> wrote: My apologies in advance if this topic was already covered at length. We have instructors at my university who would like to have their distance-education students watch the American Playhouse version of A Raisin in the Sun (1989) that is currently available through YouTube. This version was directed by Bill Duke and features Danny Glover and Esther Rolle. Do American Playhouse films require public performance rights? The URL would be posted on a web course through Blackboard. Lowell Lybarger VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors. -- Jessica Rosner Media Consultant 224-545-3897<tel:224-545-3897> (cell) 212-627-1785<tel:212-627-1785> (land line) [email protected]<mailto:[email protected]> VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors. VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
