Post to David Kaufman's Inquiry Re Streaming Dramatic Work Under TEACH Act

[Marc Lindsey <lindseym@xxxxxxx>]

I agree with John Mitchell that, to the extent you wish to stream the 
entire length of a dramatic work (I'm assuming the "Hollywood produced 
film" is dramatic), you are left with a fair use analysis. Under the TEACH 
Act dramatic works may only be displayed or performed in "reasonable and 
limited portions." See 17 USC 110(2). But the fact that the film is 
"regularly shown in a traditional class" doesn't necessarily mean it 
qualifies as fair use.

We really don't have enough facts to make a determination under the four 
factors of fair use, but we can make some reasonable presumptions. Under 
the Purpose of the copy or display factor, let's assume there is no profit 
and that the class teaches or researches drama, American cinematic culture 
or some closely related field. That's one factor weighing for fair use. The 
Nature of the film factor weighs against fair use because, as a dramatic 
work, it is highly creative as opposed to being mere data or educational 
information. The third factor, Proportion of the film, weighs against fair 
use because the entire work is sought to be displayed. That leaves the 
final factor, Effect on Market. Is there a market in higher education for 
royalties for this film to be displayed in class? Will displaying the film 
across the nation in college course affect sales or rentals of the video or 
DVD in the entertainment sector? I don't think you can really make any 
reasonable presumptions with regard to Effect on Market - not with what we 
know so far. Therefore, you have two factors strongly weighing against fair 
use, one strongly weighing for it and one - possibly the most important - 
unable to lean either way without more information.

Fair use is the sort of test where everybody winds up with slightly 
different conclusions. In David Kaufman's case, or rather Central 
Washington University, the attorney general should make the call. I 
wouldn't predict a fair use friendly analysis by legal counsel. And, like 
John Mitchell, I can't offer this as advice either. My comments are solely 
for discussion of the TEACH Act and fair use issues raised by the inquiry.

Assuming the attorney general nixes the fair use call, it would appear you 
have two choices: Get permission (and most likely pay significant 
royalties, if you can even find the Hollywood copyright holder) or, use a 
"reasonable and limited portion" of the film under the TEACH Act umbrella.

It would be interesting to read the fair use take on this by others on the 
list serve.

Marc Lindsey
Copyright Specialist
Washington State University


> Date: Wed, 30 Jul 2003 14:55:57 -0700
> To: digital-copyright@xxxxxxxxxxxxxx
> From: David Kaufman <David.Kaufman@xxxxxxx>
> Subject: query
> Message-id: <sf27dc98.020@xxxxxxxxxxxxxx>
>
> Recently a faculty member at our university asked if we would stream
> some videos.  Our policy has been to stream small portions of content
> and limit their use to web enhanced courses located on our Blackboard
> server.  Streaming is via proxy so none of the content can be
> downloaded, only viewed by the student.  These segments are turned on
> and off according to their occurrence in the faculty member's course
> syllabus.  We believe our actions meet the requirements of TEACH.  Here
> is the question.  This particular faculty member wants to stream a full
> length Hollywood produced film.  It is a film regularly shown in a
> traditional class.  Now that the course is web enhanced the faculty
> member feels streaming the content does not violate fair use.  We need
> an opinion on this.
>
> Thanks for any assistance you can provide.
>
> David E. Kaufman
> Interim Dean of Library Services and
> Director of Academic Computing
> 400 East University Way
> Ellensburg, WA 98926-7548
> ph: 509.963.1973
> fx:  509.963.3684
>
> ------------------------------
>
> Date: Wed, 30 Jul 2003 21:59:51 -0400
> To: "'David Kaufman'" <David.Kaufman@xxxxxxx>,
>   <digital-copyright@xxxxxxxxxxxxxx>
> From: "John T. Mitchell" <John@xxxxxxxxxxxxxxxxxx>
> Subject: RE: query
> Message-ID: <002c01c35707$7075c5e0$4600000a@John>
>
> My immediate reaction is that if playing the entire movie was lawful in
> the classroom, then it should also be lawful to stream it to the class,
> so long as it is just to the class.  My reason for saying so is that
> playing the movie in class is a public performance, which is the only
> copyright in issue here.  Streaming is also a public performance.  To
> put it another way, the question is whether you can perform the work
> publicly pursuant to Section 107 of the Copyright Act (leaving TEACH out
> of the analysis).  If the answer is "yes," then it should make no
> difference whether you perform the work to a group of 30 students
> sitting in a classroom or the same 30 students logging on through the
> Internet.  Both are public performances, no more, no less.
>
> (I can't offer this as legal advice, but just my approach to the issue
> you raised.)
>
> John