Re: streamed video on WebCT

[Kevin L Smith <kevin.l.smith@xxxxxxxx>]

One way libraries can stream video on a CMS without permission is using 
the exception to the public performance right in section 110(2) of the 
Copyright Act, which is also known as the TEACH Act.  There are a series 
of requirements that must be met to take advantage of TEACH, but the use 
of streaming and the restricted environment of a CMS seem to me to get you 
a long way toward meeting the most challenging of those requirements.  One 
caveat, however, is that TEACH does not authorize, in my opinion, the use 
of an entire DVD, only "limited and reasonable" portions.  I have had 
others argue this point with me, but I am pretty firm in this opinion.

Fair use might apply, of course, but it depends heavily on the 
circumstances.  With fair use, it will be very hard to justify the use of 
an entire film as well, and I actually believe that the portions one could 
stream under fair use would have to be less substantial than are permitted 
by TEACH.  Indeed, the existence of TEACH to address exactly this practice 
makes it seem less likely, to me, that a court would be sympathetic to a 
fair use claim for a use that exceeded or did not meet the requirements of 
TEACH.

I know there are institutions that stream video this way and make a fair 
use argument; I am merely expressing my opinion that that argument is 
tenuous and risky.

Finally, there are several companies that are trying to ameliorate some of 
the difficulties with getting permission to stream video.  Swank motion 
pictures now has a program to license films for CMS streaming, and some 
distributors now sell films with licensed rights for streaming (I think 
Films for the Humanities is an example, but am not certain). 

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
PO Box 90193
Durham, NC  27708
919-668-4451
kevin.l.smith@xxxxxxxx
http://library.duke.edu/blogs/scholcomm/



"Jenkins, Paul" <Paul_Jenkins@xxxxxxxxxxxx> 
07/22/2009 12:00 PM

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"'digital-copyright@xxxxxxxxxxxxxx'" <digital-copyright@xxxxxxxxxxxxxx>
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Subject
streamed video on WebCT






I am unclear as to whether or not libraries need to seek copyright 
permission
to mount streamed video on a course management system (in our case WebCT).
I've heard compelling arguments both for its fair use and for its 
requiring
permission.

Can you clarify this issue for me?

Thanks, POJ

Paul O. Jenkins
Director of Library Services
College of Mount St. Joseph
5701 Delhi Road
Cincinnati, OH 45233
513-244-4351
Fax: 513-244-4355
paul_jenkins@xxxxxxxxxxxx