Center for Digital Education & Converge: research in education technology for K-12 and higher education

Why Schools Aren't Safe Harbors for Copyright Infringement

on May 31, 2012

Whether it's copying pages out of a book, burning DVDs or showing films at school, some educators think they can use copyrighted material without consequence.

But the U.S. Copyright Law says otherwise, depending on the situation. While it's highly unlikely a teacher would be taken to court for copyright infringement in the case of showing a movie at school, it's still useful to have a working knowledge of the law and how to be good citizens when showing media.

Some believe it's also a matter of practicing what you teach.

"We teach kids not to plagiarize or violate copyright, so we shouldn't either," said Melanie Lewis, coordinator of learning resources at the Golden Valley Unified School District in Madera, Calif.

The law is complex, so beginning with an analogy is helpful.

Buying a film is like buying a house, said Corey Field, president of The Copyright Society of the USA, counsel in the L.A. office of the Ballard Spahr law practice and author of "Entertainment Law: Forms and Analysis." When someone buys a house, that person has to follow the zoning laws that govern the land. In a suburban neighborhood, property owners can't build a skyscraper.

"When you buy that DVD, it's sort of like you buying your house," Field said. "You own your house, but there's things that the law says you can't do even though you own that land."


Public performance vs. private performance

By purchasing a movie, educators buy the right to watch it and show it privately [PDF] to a normal circle of family and social aquaintances. They don't buy the right to show it publicly.

If they show the film in a public place or anyplace where a substantial number of people can see it, that's called a public performance, according to Section 101 in Title 17 of the United States Code. A school is open to the public, so it's considered a public place.

In most cases, production companies own the rights to these films, so they control who else gets to show them in public under the copyright law, Field said. Movie theaters are usually the place of choice.

 

Exemptions and fair use

U.S. copyright law does contain complicated, specific exemptions. The main one is in Section 110.

"Everything about Section 110 is screaming out there's no exception to the copyright owner's right, where you're just enjoying the film as a film," Field said. "If you're doing that and it's open to the public, you need a public performance license. But it does have exemptions for very specific teaching activities."

People often confuse educational exemptions in this section with the right of public performance. Exemptions mean there are certain things that don't infringe copyright law.

"Fair use" means someone can use a portion of the content — such as a movie. The law generally describes fair use as a concept that's for scholarly educational purposes, commentary and criticism.

But it doesn't draw a line on exactly what qualifies as fair use, Field said.

While educators may think being in a school protects them from violating copyright law, that's not true, he said.

"Just because you're in a school doesn't automatically make something exempt because it's teaching activity, and it doesn't automatically make it a fair use," Field said. "You can be a copyright infringer showing a film to the public in a school, and you're not saved by the fact that you're in a school.

"There's a difference between the geography and the copyright rights," Field continued. "A school is not a safe harbor, and neither is a church, for copyright. It all depends on what you're doing there."

 

Ownership comes with responsibility

Elementary schools in the Golden Valley Unified School District typically show films for entertainment in class on rainy days, at recess and for parties. When Lewis came to the district in 2006, she investigated whether the district had public performance licenses to show these movies. 

As a credentialed teacher-librarian, part of her credential program covered copyright compliance. And because her district was newer, no one was even aware that public performance licenses existed.

After her inquiry, the district purchased public performance site licensing for each school site from Movie Licensing USA, which covers the majority of major Hollywood producers. Last year, the district bought an umbrella license from the Motion Picture Licensing Corp., which covers 20th Century Fox and 390 independent, children's and educational producers.

These licenses cover entertainment use on school property, whether it's a teacher showing a film to a class on a Friday afternoon or the Parent Teacher Association holding a movie night. The licenses also cover them legally if other organizations that meet at the school show movies. Licenses from the two organizations cost a few hundred dollars a year per school site.

"For us, it was just to be pre-emptive because we don't want to be hit with a very large fine," Lewis said. "It's more peace of mind than anything."

Good citizenship

Everyone should be a good copyright citizen, just like everyone should obey the speed limit in their car, Field said. And like with speeding tickets, someone could go five miles over the speed limit their whole life and not get a ticket, while others might get three in a month. Some people are just lucky or unlucky, Field said.

And copyright often is like that because people who are infringers and have never been challenged or called out on it will come to believe that there really is no such thing as copyright law."

Whether you agree with the law or not, it's there, and it's the responsible thing to do to abide by it, both Field and Lewis say.

Here are some things you can do to be a good copyright citizen:

-Check out frequently asked questions on sites including Movie Licensing USA and the Motion Picture Licensing Corporation. More often than not, they're accurate, Field said.

-Read the law.

-Seek counsel from a lawyer.

-Use a public performance license to cover schools' bases legally.


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Tanya Roscorla

Tanya Roscorla covers education technology in the classroom, behind the scenes and on the legislative agenda. Likes: Experimenting in the kitchen, cooking up cool crafts, reading good books.

E-mail: troscorla@centerdigitaled.com
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