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Streaming Video Online: Think About This First

By Georgia Harper

I'm sure many of you have read last week's Inside Higher Ed's interesting, if somewhat confusing, article entitled "Hitting Pause On Class Videos", http://www.insidehighered.com/news/2010/01/26/copyright. In short, the story reports that the Association for Information and Media Equipment (AIME) is alleging that UCLA faculty members are infringing copyright by streaming entire (presumably) videos via their access protected course web sites. As I read the article, it appears as though UCLA is trying to defend this practice under Section 110(1), which only applies to traditional face to face (F2F) classroom settings. It is true that under that section an entire video can be show as long as it is lawfully made (p.s., rented movies are "lawfully made"). However, it doesn't matter, as suggested in the article, whether the online environment is a "class" and therefore, should qualify for the F2F exception; the TEACH Act amendments to 110(2) have already said that. The key is whether or not the performance or display is "transmitted". That is the difference between 110(1) and 110(2). Otherwise, no one would ever use 110(2) because its requirements are so many and so challenging. The Copyright Act, §101, specifically says that "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." And that is exactly what is happening when videos are streamed online. Now, streaming (the transmission) a video online is allowed, under certain conditions, but not the entire thing. Only a reasonable portion of it. Not helpful, doesn't make sense, but there it is. While there is some indication that, on a case-by-case basis, showing the entire video may constitute what is reasonably necessary, but I have yet to see it condoned as a generally accepted practice. There are also some interesting discussions occurring as to whether or not it is permissible to stream entire videos into a "live" F2F classroom from a central location on campus. Again, this would, strictly speaking, seem to be a "transmission", and, therefore, not authorized by 110(1); although there is probably some room for a fair use argument. But, as to a 110(1) (F2F) argument - hmm. At the time 110(1) and 110(2) were authored, I believe Congress intended 110(1) to cover the scenario where the faculty, the students, and the work were in the same location. Here is the relevant legislative history for Section110(1) of the 1976 Copyright Act:?"There appears to be no need for a statutory definition of "face-to-face" teaching activities to clarify the scope of the provision. "Face-to-face teaching activities" under clause (1) embrace instructional performances and displays that are not "transmitted." The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit." It is that last sentence that gives the most cause for pause in the rush to stream entire videos from a central location into a "live" classroom. I fear that some of these distinctions between the various provisions of the act are being glossed over in the stretch to justify what certainly seem to be legitimate and non-threatening uses of technology which allow efficient use of resources for maximum educational experiences. I know from personal experience, though, that many libraries are reluctant to rest their e-reserves practices entirely on fair use. It seems only fair that they should also have the information that streaming entire videos online is not specifically sanctioned by the copyright act and instead relies much more on fair use.

Full post as published by ©ollectanea on February 03, 2010 (boomark / email).