When You Need Permission & How To Get It

Educational Transmissions of Copyrighted Works:
When You Need Permission & How To Get It

Copyrighted works may be used in teaching if the use

a. has the written permission of the copyright holder (NC State University Permissions Guide; UT Getting Permissions page), or
b. is "fair use" (http://www.provost.ncsu.edu/copyright/use/), or
c. is a display or performance of the work in face-to-face classroom teaching, (Section 110(1) of the Copyright Act) or
d. is a transmission of display or performance of certain works to a classroom setting for teaching purposes. (Section 110(2) of the Copyright Act).


A. FACE-TO-FACE CLASSROOM TEACHING - SECTION 110(1)

Section 110 of the Copyright Act provides limitations on the exclusive rights of the copyright holder in favor of teachers in nonprofit educational institutions. Section 110(1) allows teachers and students in a nonprofit educational institution to perform or display any copyrighted work in the course of face-to-face instruction in a classroom setting. It is this section that has allowed you to read a poem aloud, act out a play, display a photograph or slide or play an audiovisual work embodied in a videotape. This section does not apply to transmissions or broadcasts.

B. TRANSMISSIONS OF PERFORMANCES AND DISPLAYS - SECTION 110(2)

Conversely, Section 110(2) does apply to transmissions under specified circumstances. Section 110(2) allows the transmission of a performance of a non-dramatic literary or musical work or display of a work for systematic instructional activity under the following conditions:

1. The performance or display must be directly related and of material assistance to the teaching content of the transmission; and
2.The transmission must be received in classrooms or other places normally devoted to instruction.

Examples of such performances and displays are singing a song, reading a short story, or displaying photographs and illustrations.

To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

A literary work is defined in the Copyright Act as "a work, other than an audiovisual work, expressed in words, numbers, or other verbal or numerical symbols or indices, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied".

As you can see, the performance of entire audiovisual works falls outside the purview of section 110(2) and permission should be obtained.  Contact General Counsel’s Ofc with any questions associated with uses falling beyond the scope of 110(2).

Another possible solution would be to have sufficient copies of the work for each location thus taking the performance back into scope of 110(1).

Showing portions of an audiovisual work may be permitted under Section 107, the fair use doctrine.

The threshold question is:

Is the proposed material "Audiovisual" or not?

Audiovisual is defined as works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

If the proposed material is audiovisual, you cannot transmit it in its entirety without permission from the copyright holder. This means:

Non-audiovisual materials

1.             Printed Materials:

a. Multiple copies for students: permission may/may not be required
b. You may show text, maps, graphs, charts, pictures, cartoons, photographs, news articles, etc.

2.             Slides, Movies, Filmstrips:

a. May show slides or transparencies from a set as long as non-sequential.
b. May show a still frame from a filmstrip, motion picture, Videocassette, video laserdisc or CD-I.

3.             Music: [By itself i.e. not sound from motion picture or other audiovisual work]

a. May play, perform, or sing, but creating a derivative work or synchronizing with images is likely to be infringement

4.             Photographs/Images:

a. May display but see slides (2) above.

5. Plays/Dances:

a. May read aloud but cannot act out in dramatic form; cannot perform a dance.

6. Programs Recorded from Television: These are audiovisual works; see audiovisual works above.

TEACH ACT

Background

Faculty and students will often want to incorporate some or all of the copyrighted work of others into course materials that are to be digitized and transmitted for distance education. In the past, this could sometimes be lawfully accomplished via the fair use provisions (17 U.S.C. 107) and/or the performance/display exemptions (917 U.S.C. 110(2)) of the copyright act. In November 2002, the performance and display exemptions of the copyright act were revised and updated to address the digital environment. The revised provisions facilitate digital educational use of materials without requiring copyright permission, subject to several conditions. The conditions are outlined here, but faculty and students are encouraged to seek advice from their university attorneys and distance education experts.

This recent distance education update of copyright law is called the Technology, Education, and Copyright Harmonization Act (TEACH). The TEACH exemption is one of several options faculty and students have when using copyrighted works in their course materials. Some background on copyright law and the options available to faculty and students are set out below.

Federal law automatically gives copyright protection to "original works of authorship" at the moment they are "fixed in a tangible medium." In most cases, the copyright belongs to the person who authors or creates text, images, software code, video, audio, and layout ("works") for distance education.

TEACH Act Requirements (Overview)

WHO:

WHAT:

BUT NOT:

WHEN:

HOW:

CONVERSION
ANALOG TO DIGITAL:

GENERAL INSTITUTIONAL REQUIREMENTS:

TEACH Act Glossary

1.             Accessible Form

Measures that do not cause the destruction of or prevent the making of a digital file leave the work in accessible form. For example, if something is merely encrypted and the recipient is given the key, then it is in accessible form after that.

2.             Accreditation [from the TEACH Act]

For a post secondary educational institution, accreditation is as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the U.S. Department of Education.
[Note from Senate Report (p.9): Institutions qualify for accreditation for TEACH purposes at the institutional level (not the course level). This means that all courses at a qualifying institution are eligible to use TEACH whether or not they are part of a degree or certificate granting program.]

3.             By, at the direction of, or under the actual supervision of the instructor
The legislative history indicates that this phrase does not mean that the instructor is the only one who can post the materials to be performed or displayed. Someone enrolled in the class can also post as long as there is actual supervision by the instructor, i.e., not in name only. 'Actual supervision' does not require constant or real-time supervision or prior approval.

4.             Class Session
A class session is generally that period during which a student is logged on to the server of the institution making the display or performance. It is likely to vary with the needs of the student and with the design of the particular course. A particular class session cannot last for the entire semester, but the materials can remain on the institution's server for the duration of its use in one or more courses. The materials may be accessed by a student EACH time the student logs on to participate in the particular class session of the course in which the display or performance is made.

5.             Display [from 17 USC 101]

To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non-sequentially.

6.             Lawfully Made

Lawfully made includes not only materials made with the permission or under the authority of the copyright holder but also those made under the authority of the copyright act, such as "fair use" copies.

7.             Literary Works [from 17 USC 101]

Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

8.             Mediated Instructional Activities [from TEACH Act]

Mediated instructional activities are activities that use such [permitted] works

• As an integral part of the class experience
• Under the control or actual supervision of the instructor
• In a manner analogous to performances and displays in live classroom settings

According to Senate Report (p.10), such activities must use the works as part of the course rather than ancillary to it. Thus, the TEACH exemption would not include supplemental reading such as coursepack materials. The report also indicates that e-reserves are not included if they are not analogous to the performances and displays of a live classroom setting.

9.             Nondramatic vs. Dramatic

The Copyright Act does not define 'nondramatic' or, for that matter, 'dramatic'. According to Nimmer and the U.S. Copyright Office, a dramatic work is "'a written or literary work invented and set in order' in which the narrative is not related but is represented by dialogue and action." It is "a work in which the narrative is told by dialogue and action, and the characters go through a series of events which tell a connected story… " Fundamentally there seem to be but two essential elements for a dramatic composition: (1) that it relate a story, and (2) that it provide directions whereby a substantial portion of the story may be visually or audibly represented to an audience as actually occurring, rather than merely being narrated or described." Thus, performances of a nondramatic literary work would include readings from textbooks, novels, and poetry. Dramatic works would be exemplified by stage plays.

10.          Officially enrolled in the course
This requirement is not intended to impose a general requirement of network security. Rather, it means that recipients should be identified and the transmissions limited to such identified authorized recipients.

11.          Performance [from 17 USC 101]

To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

12.          Public performance or display [from 17 USC 101]

To perform or display a work "publicly" means -
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

13.          Reasonable and Limited Portion

As used in TEACH, the 'reasonable and limited portion' requirement applies to the performance of any type of work (other than nondramatic literary or musical works which can be performed and transmitted in their entirety). In determining what is reasonable and limited one should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance.

For displays of works, the amount allowed in TEACH is the amount that would have been used in a live classroom setting.

14.          Technologically Feasible or Technological Measures that Reasonably Prevent Retention & Further Dissemination [from House Report]

This requirement does not impose a duty to guarantee that retention and further dissemination will never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the 'reasonably prevent' standard should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to 'reasonably prevent' contemplates an objectively reasonable standard regarding the ability of a technological protection measure to achieve its purpose. Examples of technological protection measures that exist today and would reasonably prevent retention and further dissemination, include measures used in connection with streaming to prevent the copying of streamed material, such as the Real Player "Secret Handshake/Copy Switch" technology discussed in Real networks v. Streambox, 2000 WL 127311 (Jan. 18, 2000) or digital rights management systems that limit access to or use of encrypted material downloaded onto a computer.

15.          Transmit [from 17USC 101]

To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

16.          Works produced or marketed primarily for performance/display as part of mediated instructional activities transmitted via digital networks

Works covered by this are just what it says - digital educational materials. It does not apply generally to all educational materials, all materials with educational value, or those developed and marketed for use in the physical classroom.

C. HOW DO I OBTAIN PERMISSION FOR AUDIOVISUAL WORKS?

Here are some suggested steps to follow:

1. Check both the film and its box (if you still have) it for a copyright notice. Although a copyright notice is no longer required for works created after March 1, 1989, many works still use one. If there is a different holder noted on the box, start with that name as it frequently is more recent.

2. Locate the holder and fax them requesting their permissions department. This is generally faster than a telephone call. A number may be provided on the film, the box, or any materials that came with the work. Many films are produced or licensed by one of the following major companies:

Motion Picture Licensing Corporation
Independent copyright licensing service authorized by major Hollywood motion picture studios and independent producers to grant umbrella licenses to non-profit groups and organizations
5455 Centinela Avenue, Los Angeles, California 90066-6970
TEL: (800) 462-8855, (310) 822-8855
FAX: (310) 822-4440
http://www.mplc.com

Time Warner
Includes Time, Warner Brothers, Warner Music, CNN, Turner Broadcasting, and HBO
http://www.aoltimewarner.com

Universal
Includes Universal Pictures, Universal Music, Universal Television, Universal Networks, etc.
http://www.universalpictures.com/

Sony
Sony Pictures
http://www.sonypictures.com/

3. After faxing the permission request, wait approximately one week and then follow up with a telephone call to their permissions department. Ascertain that your fax was received and its current location. It may be that the fax did not reach the appropriate individual and you will need to resend. If you and your fax have reached the correct person, you will need to explain your proposed use of their material. Emphasize the nonprofit educational nature of your use, any closed characteristics of the proposed transmission method and that the transmission will only be viewed by students enrolled in your course as opposed to the public at large. This may also be the time to describe the limited financial resources, if any, available to you and your department for royalty payments. As set forth in the attached sample permissions request, attempt to obtain permission for the broadest or lengthiest possible use if you anticipate using the film in subsequent semesters.

4. Every subject has a magazine or newsletter. If you cannot find one, contact the library personnel who order magazines. Always ask for the free catalog. If the individual you called cannot help you, ask for a referral to who might.

5. If the film does not belong to anyone above, you will need to research the identity of the copyright holder. Check any books or materials that accompanied the film. Find the person who ordered or purchased the film for information on where they got it. Was it obtained at a conference? Check with the conference organizers or sponsoring professional organization(s).

6. Some companies are more reasonable than others. If the owner you are dealing with either refuses permission or wants an excessive amount of money, you may need to find a different film. There may be a public domain film that would obviate the need for copyright permission.

7. The University of Texas system maintains a website entitled "Getting Permission" which may be of assistance as well.

8. Obtain Legal review / contract review for any license agreements other than approved forms.


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