We All Now Wish We Were Film or Media Studies Professors

So, thanks to the Librarian of Congress, film professors and media studies professors can now make a compilation of film clips for class without breaking the law. But ONLY film professors and media studies professors.

From the Copyright Office’s website:

The Librarian of Congress, on the recommendation of the Register of Copyrights, has announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

This is very exciting…for some… See the Berkman Center’s website that explains the problem from a film professor’s pov. – namely, the need to be able to have multiple clips in a convenient format to make classes run more smoothly.

Where does that leave all the others -- English professors, law professors, secondary and elementary school teachers, preschool teachers...everyone else? We still must choose 1) to break the law by circumventing technology to prevent making a copy of a clip of a movie to show in class, 2) try to show the clip wanted from the original source or 3) forgo showing the clip(s) at all.

Here are a couple of examples from my courses this year.

In Property law course, I used an Eddie Izzard clip from “Dressed to Kill” to bring home the ideas from Johnson v. Mc’Intosh, a seminal first year property case where Justice Marshall explains that Native Americans cannot transfer title to land because, essentially they did not have, as Izzard puts it, “a flag.” The clip brought home the power relationships and the constructed discourse is a way that made it more immediate for brand new law students. Now, when I showed this in class, I obeyed the law and played the clip from the CD. But of course, even though I had set it before class, I know found myself fumbling to get to the exactly right part of the track – wasting time and making me look less than organized. I would have much preferred to have had a copy of the short clip. But that would have been illegal, if the dvd had any anti-cirumvention devices to prevent copying.

An even more troublesome example occurred in my IP Survey course. I wanted the students to work with the different tests for copyright infringement from the various circuits. To do this, I decided to give them a copy of the garden scene from Charlie and the Chocolate factory – the original novel version, and the two film versions. We worked with the text and the two scenes to understand the process of determining whether infringement occurred. Again, I made no copies of the two scenes. Instead, I brought in the two dvds. You can’t key up two dvds before class… so there was that time… I also wanted to pause, skip, and would have compared individual parts, but instead felt the time and technological pressure to play one clip all the way through and then the other—a much less powerful exercise.

My husband also uses a ton of films in his teaching – both English composition (where they analyze a number of scenes from a particular movie, or compare a number of scenes from different movies), and in his courses “Film and Literature.” Does he qualify as a film professor, if he works in the English department teaching a course like “The Corporation in Literature and Film.” I don’t know.

Now, of course, it is critical to keep in mind, that it is perfectly legal for me in both of classes, for Ron in his class, and anyone else playing clips or even the entire film for a classs to show the clip or film in its entirety without asking permission, paying a license fee or anything else, thanks to Section 110(1). Again, from the Copyright Office’s website:

§ 110. Limitations on exclusive rights: Exemption of certain performances and displays41
Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

So, according to the Copyright Law, I can show anything I want in class, as long as it is a lawful copy, and making a compilation of clips is now lawful, but only for film professors and media studies professors. Do you think they could make a clip compilation for my law class that I could borrow? It would make showing clips as part of a class discussion so much nicer. At least someone can now do that legally….

Comments

I do find it odd that the exception is so narrowly limited. The section 110(1) exception for face to face classroom teaching should not distinguish or favor one group of instructors/subjects over another. (I can't imagine Congress wanted that to happen.) With the Copyright Office's announcement this week, the result is quite odd. I do like your "workaround" of asking a media studies professor to make the clips you'd like into a DVD. The clips would then be legally obtained, and § 110(1) would seemingly protect you. (Now if I were a media studies professor, I might consider setting up a business of creating these DVDs for other faculty...)

colette@vogelelaw.com

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