Please note that ALA cannot give legal advice. If you need legal advice, you should contact an intellectual property attorney.
The Copyright Act of 1976 governs the rights of reproduction, adaptation, distribution, and public performance and display. Several sections of this act have implications for videocassettes, DVDs and computer file formats.
When libraries purchase a videocassette or a DVD, or make a video file accessible to patrons for a specific rental period, they own the physical object but not the copyright. Copyright law, therefore, determines what libraries can and cannot do with the videotapes/DVDs/video files they own without infringing upon the copyright they do not own. However, the law also includes exceptions and limitations to the exclusive rights of the rights holder that allow libraries to lend, preserve and replace videos and allow non-profit educational institutions the right to publicly perform videos in the face-to-face classroom, and under certain conditions, in the distance educational classroom via digital networks. When libraries want to use a videotape/DVD/video file in such a way that would infringe upon the copyright, permission must be sought from rights holder in the form of a license agreement. Permission fees are likely.
Created by the Center for Social Media and The Program on Information Justice and Intellectual Property, Washington College of Law, both at American University. This is a series of “Codes of Best Practices” or “Principles” for fair use in specific professions or use groups, such as journalism, academic and research libraries, poetry, and documentary filmmakers. These codes are jointly developed by affected stakeholders, with guidance from PIJIP and the AU Center for Social Media.
This guide provides basic best practices supported by review and selection tools, a glossary of video formats, and an annotated short list of vendors.
Library Loan/Rental of Videos
Libraries may loan/rent videos, in whatever available format, to patrons for their personal use. This is true even if the video is labeled "For Home Use Only." The first sale exception (§109) copyright allows an owner of a work to lend, rent or other depose of the work. Because of this, libraries can lend, people can sell videos or books at their garage sale, Amazon call sell new and used books, and second hand book stores are a legitimate business.
Libraries should not knowingly loan a video to groups for use in (non-educational) public performances. If a patron inquires about a planned performance of a video, he or she should be informed that only private uses of it are lawful.
If libraries are aware that library patrons are checking out videos or DVDs in order to copy them, the patron should be advised that the use is not lawful. Having a policy regarding the lending of works, especially those works that can be easily copied should be developed. In this way, if a librarian has reason to believe that works are copied without authorization, she can invoke the policy and suspend lending privileges.
Libraries can charge a nominal fee for use of videos.
While not required by law, librarians can label videos and DVDs with a copyright warning statement such as "This work may be protected by copyright. Further reproduction and distribution may be an infringement under the copyright law (17 U.S.Code)."
Classroom Use of Videos
Public performances of a video/DVD in the face-to-face classroom is an exception to the public performance right §110 (1) and therefore lawful. The following conditions apply:
The teaching activities are conducted by a non-profit education institution
The performance is in connection with face-to-face teaching activities.
The performance takes place in a classroom or similar place devoted to instruction.
The person responsible for the performance has no reason to believe that the videotape was unlawfully made.
This piece was written in hopes of clarifying one aspect of the confusion—digital delivery of content to the “physical” classroom.
Motion Picture Licensing
Motion Picture Licensing Corporation (MPLC) and Movie Licensing USA
Unless a library purchases a video that comes with public performance rights, it is a copyright infringement for the library to use that video for in-house viewing or programs. Typically, the videos and DVDs purchased through normal retail channels or from video rental stores do not carry the necessary public performance rights, and it will be necessary to obtain those rights in writing from the copyright holder or from a licensing agent. If your library or school plans to show videos frequently, you may wish to consider a site license.
The Umbrella License grants organizations permission to show legally obtained audiovisual programs without the need to report titles, dates or times of exhibition.
Library Use of Videos
Library Use of Videos
Most public performances of a video in a public room (including library meeting rooms), whether or not a fee is charged, are an infringement of copyright. Such performances require a public performance license from the rights holder. There are few exceptions to this rule unless the public performance is determined to be a fair use.
Libraries that permit patrons to watch videos, DVDs, or video files in private viewing rooms should strictly limit the viewing to one individual or a very small group and should not levy charges or fees.
Previewing a video before borrowing or purchasing it should be done in a private space.
Notices may be posted on video recorders or DVD players or on computer monitors used in the library to educate and warn patrons about the existence of the copyright laws. Such a notice might read:
"MANY VIDEO MATERIALS ARE PROTECTED BY COPYRIGHT. 17 U.S.C. SEC. 101. UNAUTHORIZED COPYING MAY BE PROHIBITED BY LAW."
This article provides responses to five copyright scenarios—institutional pricing, the face-to-face classroom, video copying and replacement, film clips and streaming video—that are frequently faced by librarians who manage and acquire media.
A list of publications on copyright available from libraries across the country and around the world.
School and academic libraries do not require public performance rights if the titles will be shown only for non-profit, educational purposes.
Are libraries required to purchase videos or DVDs at the higher institutional price? No. Vendors or publishers often use tiered pricing, but the library does not have to pay the higher fee unless it is getting something in return (discounted replacement copies, etc.) Many libraries by their own choice pay the institutional price for ethical reasons, recognizing that many people will use the video and a higher fee may be warranted.
Can libraries buy videos or DVDs at retail outlets, such as Wal-Mart or Sam’s Club? Yes, these videos can be added to the collection, loaned and shown for non-profit, educational purposes.
Why are some videos/ DVDs labeled "Home Use Only?" Vendors or publishers want to remind consumers that videos and DVDs should not be shown to the public as this is an exclusive right of the rights holder. There is an exception to the public performance rights that allows non-profit, educational institutions the right to publicly perform videos/DVDs for non-profit, educational purposes.
Can I show an entire DVD in the distance educational classroom via digital networks? The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 says only portions of DVDs can be screened in the distance classroom. However, fair use may apply when it is necessary to show the entire film to meet the teaching need.
What if I obtain a video or DVD via a license agreement? In general, a license agreement (even those that are non-negotiated such as a "click-on" license) override the copyright law. This means that contract terms will define what you can or cannot do with the copy.
Educators and students use YouTube videos for classroom or assignment purposes. Are these uses lawful? If associated with a license agreement, it may be a breach of contract (but not an infringement of copyright) to use the videos for anything but private, non-commercial use. However, the use of YouTube videos in non-profit, educational settings is wide spread and common. Rights holder have not sued educational institutional for this use, so it may be a use that rights holders tolerate or find relatively harmless since there are no market implications. Using YouTube videos outside of the educational environment, especially for commercial purposes, may require permission.
Is it lawful to make film clip compilations for use in the classroom? Yes, this use is a fair use. Screen capture is an easy way to accomplish this. You must be a higher educational faculty member or college student studying media or film studies if you wish to circumvent technological measures employed by the rights holder (such as Content Scrambling System (CSS)), This rule may change or be expanded based on federal rules determined by the Librarian of Congress in conjunction with the Copyright Office’s triennal rulemaking on the circumvention of technological protection measures. §1201(a)(C).
With the increased use of DVD systems it has been suggested that we convert our VHS library of educational videos in VHS format to DVD. Is it a copyright violation to convert to DVD and discontinue use of the VHS tapes?In most cases, yes, it would be a copyright violation. Reproducing a VHS to DVD without the prior permission of the rights-holder is an infringement of copyright. This kind of reproduction is not exempt because it is not "fair use" and it does not qualify as a lawful reproduction. However, in a situation where the VHS tape is lost, stolen or deteriorating or is in an obsolete format (a 3/4" tape is obsolete because the equipment is no longer being sold, but a VHS tape is not obsolete) and is not available in the DVD format in the market for a reasonable cost, the library can make a reproduction. But if the reproduction is in a digital format (DVD is digital), then that copy cannot leave the library premises. Please see "Preservation Copying" under the Special Topics tab.