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E. Grading Teachers on Copyright Law -- Videotaping for the Classroom

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If you're a teacher, you should know if and when you may legally tape educational TV programs and use them in your classroom.

As educators find that books and lectures don't impress or excite today's image-saturated youth, televisions are becoming as common in the classroom as blackboards. There is even a special closed-circuit television network just for high schools.

Given the widespread availability of videocassette recorders, many teachers need to know if and when they may legally tape educational TV programs off the air and show them to their students.

The Legal Rules

Television programs, like most other types of expression, are protected by federal copyright laws. This means that as a general rule, a TV program can legally be taped and shown to students only with the copyright owner's permission.

Fortunately, the Copyright Act contains a special exception for educational uses of copyrighted materials. Under what is known as the"fair use" rule, someone other than the copyright owner may make limited use of a copyrighted work without permission for purposes such as teaching, research, scholarship, criticism, parody and news reporting.

To help educators determine when off-air taping is and is not a fair use, a set of very concrete guidelines was created by a committee comprising representatives from educational organizations and copyright owners. These guidelines (known officially as "Guidelines for Off-Air Recording of Broadcast Programming for educational Purposes") do not have the force of law and have never been tested in the courts. Many producers do not agree with them, and many teachers aren't thrilled either, because they offer only limited, temporary access to broadcast materials. However, most copyright experts believe that taping that falls within the guidelines is permissible and would be upheld as a fair use if challenged in court.

The guidelines apply only to off-air taping by nonprofit educational institutions, including all public schools and most private schools and colleges.The guidelines do not apply to for-profit language or trade schools.

Here are the basic rules:

  • Only programs broadcast to the general public may be taped. This includes all programs broadcast to homes and schools. The guidelines do not apply to programs available only from cable television services such as Showtime, HBO, The Disney Channel, C-Span and ESPN.
  • A classroom teacher who wants a particular program taped should ask the school to tape it.
  • The tape may be shown only during the first ten consecutive school days after it is made, and only in a classroom or similar place devoted to instruction. A tape may be shown to several classes if appropriate.
  • A limited number of copies may be made from each off-air recording. Each copy is subject to all the provisions governing the original recording.
  • The tape may not be altered in any way. For example, tapes may not be edited to create an anthology or compilation.
  • After the ten-day classroom use period expires, the tape may be used only for evaluation -- that is, to determine whether it should be bought or licensed for permanent inclusion in the teaching curriculum. Not later than 45 calendar days after the tape was made, it must be destroyed.

The guidelines do not discuss whether or not a teacher may record a program at home for school use. It seems likely, however, that the practice is permissible so long as all the other guidelines are followed.

No independent organization enforces these guidelines. Schools that want to document their compliance should make and keep records of teacher requests, dates of taping, times shown and number of copies made.

Beyond the Guidelines

The guidelines don't cover many common situations. For example, they say nothing about the legality of keeping a taped program more than ten days, or taping a cable channel offering.

That does not necessarily mean that such uses could not be permissible under the fair use doctrine. To determine whether or not a particular use is a fair use,four rather vague factors must be considered:

  • the purpose and character of the use
  • the nature of the copyrighted work
  • the amount used, and
  • the effect of the use on the present or future market value of the work.

In fact, you'll probably know what to do if you just remember that a use that takes money out of a copyright owner's pocket is probably not a fair use. Thus,off-air taping beyond the scope of the guidelines is probably not a fair use if the program's producer makes videotapes available to the schools or the public for purchase or rental, because off-air taping reduces the market for such tapes.This is particularly true where videotapes are made available to schools at special discounts. If videotapes are not available, limited off-air taping might be a fair use, but no one knows for sure because no court has considered the question.

Taping beyond that permitted by the guidelines may be permissible for programs broadcast on PBS (Public Broadcasting System) stations. Producers of many PBS programs permit educational institutions to tape their programs off the air and show them for longer than ten days -- sometimes for years. This is not true for all PBS programs, and the scope of the use allowed varies from show to show. Contact the educational or public service coordinator at your local PBS station for information about exceeding the guidelines for any particular PBS program.

 

More Information

The Association for Information Media and Equipment (AIME), a trade association for film and video producers, publishes a copyright information packet ($7.50)and videotape ($17) for schools. AIME also answers educators' questions about copyright and electronic media. (http://www.aime.org).

The Copyright Handbook, by Stephen Fishman (Nolo),discusses the fair use rule, and other aspects of copyright law, in detail.


What, Me Worry?

Theoretically, a teacher or school that makes unauthorized videotapes is in violation of the copyright law and runs the risk of being sued for copyright infringement. But as a practical matter, it is highly unlikely that a television producer would ever sue a school or individual teacher. Most unauthorized use is never discovered, after all -- there are no copyright police roaming the nation's classrooms.

In any case, a lawsuit is just too expensive. In the past 200 years, only a handful of copyright infringement suits have been brought against educators, and there is only a single reported court decision on videotaping, which involved large-scale, systematic taping by an educational consortium in New York. Probably the worst that would happen is that the producer would send the school a nasty letter and demand some payment.

Fear of getting caught, of course, isn't the only reason to obey the law. Schools have a special responsibility to set an example of obedience to law. And from a purely practical point of view, schools are an important market for producers of documentaries and other educational works. If instead of buying copies of a program, schools simply taped a telecast and made as many copies as they chose,producers would lose money and be less likely to create new educational works.

 

Copyright © 2007 Nolo

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