Fair Use Resources
Guidelines
Fair Use Guidelines from SCMS
Wednesday March 18, 2009 Posted in: Guidelines | Tagged with: guidelines SCMS fair use
The Society for Cinema and Media Studies’
Statement of Best Practices for Fair Use
in Teaching for Film and Media Educators
INTRODUCTION
The field of film and media studies in the United States was shaped by the legal principle of fair
use - the ability of educators, critics, and others to teach, study, and write about media without having to
ask copyright holders for permission every time their works are used. Educational and critical uses of
media, such as those employed by film and media educators, are woven into the fabric of a free,
democratic society, and lead directly to the continued health and creative vibrancy of both commercial
and non-commercial film and media. There are two main barriers to the full exercise of lawful uses of
media by film and media educators. First, many film and media educators lack a basic understanding of
copyright law, particularly of the framework through which they may make legal, non-infringing uses of
another’s work. Second, vagueness in the law has resulted in a lack of consensus among educators
regarding permissible practices and a confusing patchwork of policies, guidelines, and actual uses. In
light of these two barriers, it is unsurprising that academic gatekeepers (libraries, university general
counsels, IT staffs, etc.) frequently choose to adopt overly cautious and conservative copyright policies
that sometimes result in a diminished educational experience for film and media students.
The Society for Cinema and Media Studies (“SCMS”) has created this Statement of Best Practices
for its membership to clarify some of the issues concerning the permissible use of media for teaching.
Note that this statement explains and clarifies United States copyright laws and policies, as over 85% of
SCMS survey respondents teach within the U.S. SCMS members teaching in other countries should
consult with local experts as to how these guidelines might apply in other parts of the world. This
statement is informed by statutory provisions and their legislative histories, analogous case law, and
current professional practices based on a survey conducted by the SCMS Public Policy Subcommittee and
input from members of the subcommittee. The online survey was administered using
SurveyMonkey.com. It generated 659 responses over 10 days in Spring 2007, representing approximately
30% of SCMS membership, polled the current practices of SCMS members and asked for comments and
feedback concerning the issue of copyrighted material and film and media pedagogy. The survey focused
on the sources used to obtain course material, the screening of that material, and the creation of
compilations for instructional purposes and student uses. SCMS has attempted to use the information it
gained through the survey to compile, analyze, and evaluate common practices of film and media
educators. The final report was reviewed and approved by the SCMS Board of Directors.
SCMS’ Statement sets out to accomplish four specific goals:
1. To provide practical assistance to film and media educators in determining whether a particular
use of a work is permissible;
2. To provide a guide for publishers, universities, and other gatekeepers or insurers to support the
work of film and media educators;
3. To deter copyright owners from taking unfair or intimidating action; and
4. To formalize customary practices that over time can help guide courts in determining what types
of uses are generally accepted as non-infringing by film and media educators.
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THE CONCEPTS OF COPYRIGHT AND FAIR USE
The freedom of film and media educators to use audiovisual works in their courses – and the
limits on such use – are rooted in existing copyright laws. Copyright law provides owners of copyrighted
works a number of limited rights, including the right to exclude others from reproducing, performing,
displaying, and distributing their works. The law also gives copyright owners the right to exclude others
from preparing derivative works from their original works, including translations, adaptations, and
compilations. In many cases, if someone engages in any of these activities without the permission of the
copyright owner, that person may be infringing on the owner’s rights and may thus be held liable for
damages.
In the interest of balancing copyright owners’ rights against potentially beneficial uses of the
works by others, copyright law has imposed a number of restrictions on these rights. These restrictions
serve as “safe harbors” for educators by allowing certain uses of protected works that do not infringe
copyright holders’ rights. There are three important safe harbors of particular interest to film and media
educators: the doctrine of fair use, the exception for face-to-face teaching activities, and the exception for
online distance education. The fair use doctrine affords the broadest protection for use of copyrighted
materials because it is a general and flexible standard. In general, fair use allows people to use
copyrighted materials without authorization for purposes such as “criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research,” so long as their use
qualifies as a “fair use” in light of the four factors set out in 17 U.S.C. § 107:
1. The purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
The Copyright Act specifically recognizes that uses of copyright works for the purposes of
teaching and criticism are the kinds of uses that the fair use doctrine is intended to protect. Under the first
factor, if the “purpose and character of the use” is non-profit educational activity, it would tend to weigh
heavily in favor of the use being fair and non-infringing. However, not every educational and
noncommercial use is non-infringing; fair use analysis requires examining all of the factors relative to the
others and in view of the overall aims of U.S. copyright law. Further, different courts have emphasized
different factors at different times. The second factor asks users to consider “the nature of the
copyrighted work.” Generally, creative works are afforded greater protection than purely factual works.
The third factor depends on the “amount and substantiality of the portion” borrowed from the overall
copyrighted work, taking into account whether more of the work was used than necessary to accomplish
the specific purpose of the use. The fourth factor examines “the effect of the use upon the potential
market for or value of the work.” In the educational context, this factor protects the copyright owners’
financial interests in being able to create and sell works to educational institutions, educators, and
students. If the audiovisual work being used by an educator was specifically marketed for classroom use
and the use would substitute for purchases or licenses that otherwise would be likely to occur, it would
tend to weigh against it being fair use and the educator may have to obtain formal permission for such
use.
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Educators may also rely on the face-to-face classroom exception and the online distance education
exception to protect educational uses of media. Educators may seek protection under these exceptions
when their use meets their respective requirements. However, even if their particular use is not covered
by one of the exceptions, it may still qualify as a “fair use” under the four factors outlined above.
It is important to note that neither the educational exceptions nor the statute’s definition of fair use
delineate specific permissible uses. As a result, it is somewhat unclear exactly which uses they protect
and every use is subject to individual analysis. Thus, this statement does not attempt to establish specific
practices that would be protected under current copyright law. Instead, it outlines basic copyright
principles regarding educational use. It also describes prevalent practices in the community of film and
media educators that are believed to be fair uses or otherwise permissible without copyright holder
authorization. The Statement identifies five broad principles for use of film and media in U.S. classrooms
and then sets out limitations and clarifications regarding certain uses. The stated principles are critical to
ensure a thriving film and media educational curricula which in turn will support the growth of the field
of film and media studies.
PRINCIPLE I: CLASSROOM SCREENINGS
The practice of screening excerpts or entire works within the face-to-face teaching context is well
established, requiring no permission or payment. A face-to-face teaching context involves educators
being in the same general place as their students during the display and performance of copyrighted
works. The space itself does not have to be an actual classroom and may include other places used for
instruction, such as a gymnasium, auditorium, or library. Educators using film and media for
instructional purposes within the face-to-face teaching context require great latitude to display, perform,
and reproduce copyrighted works. They routinely utilize still images, film and video clips, video games,
audio segments, and other media for the purposes of analyzing and illustrating historical, theoretical, and
critical ideas. In many cases, educators need to use complete works, either in class or during separate
screening times. Educators have been doing this at U.S. universities for many decades. This
understanding of the fair use doctrine seems to be supported by current practices, as at least 70% of
SCMS survey respondents reported that they screen materials for courses without formally securing
permissions from rights holders.
Limitations & Clarifications
Lawfully Made Copies: The practice of screening works falls squarely within the face-to-face teaching
exception so long as the copy of the work used for such instruction was lawfully made and it was
screened in an appropriate location, as described above. A copy is lawfully made if: (1) it is reproduced
with the permission of the copyright holder; or (2) it is reproduced such that it falls within the fair use
exception. It may be purchased, rented, reproduced, or borrowed by the person using the work or by
anyone else. Thus, a library copy, a student’s copy, or another professor’s copy could all be considered
lawfully made. It is important to note, however, that even if the copy was unlawfully made, the
performance or display of the work may still fall within the exception if the educator did not know or
have reason to know of that fact.
Screenings: In some cases, film and media educators may be required to obtain licenses for certain
screenings of audiovisual works. A license may be required for classroom screenings that are advertised
to persons who are not enrolled in the course or that require an admission charge beyond the regular
tuition and fees for the course. A license may also be required for screenings aimed at entertainment
rather than educational purposes. Many films and videos directed at an educational market may be rented
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with licenses that permit their screening or broadcast outside of the classroom. There are also a number
of rights clearinghouses that may be contacted to secure licenses for such use. It is important to
remember, however, that even when the audience for the screening extends beyond the classroom or
admission is charged, educators’ screening of the material may still qualify as a fair use under the
Copyright Act.
Distribution to Students: Copyrighted media may also be made available to students for further study
through library or departmental reserves. In addition, such works may be distributed online, provided that
the requirements of the online distance education exception are satisfied or the use qualifies as a fair use
under the Copyright Act. See the discussion in Principle IV regarding the online distance education
exception for further information.
PRINCIPLE II: BROADCAST RECORDINGS
Film and media educators routinely record radio and television broadcasts for use in their
classrooms. These recordings are often retained in personal or university libraries for the purposes of
teaching and study. SCMS believes these recordings can be retained indefinitely, used for subsequent
courses, and qualify as fair use.
Limitations & Clarifications
Previous Broadcast Guidelines: The community of film and media educators believes that fair use of
recorded broadcast programs in the classroom is not limited by the restrictions laid out in the “Guidelines
for Off-Air Recording of Broadcast Programming for Educational Purposes,” which were issued in 1981
and are available through the Copyright Office at http://www.copyright.gov/circs/circ21.pdf. Although
the guidelines impose some restrictions on such copying, they are not binding, have never been relied on
by a court, and have not been widely adopted by universities nor enforced by copyright owners. The
guidelines also may have been superseded by the decision in Sony Corp. of America v. Universal City
Studios, Inc., 464 U.S. 417 (1984). The Sony decision made the recording of broadcast television
programming for personal use lawful as a fair use. Accordingly, such copies should meet the “lawfully
made” requirement if later used in the classroom under the face-to-face teaching exception, even if they
do not meet the broadcast guidelines.
Highly Organized, Large-Scale, and Systematic Reproduction: The highly organized, large-scale, and
systematic reproduction of copyrighted works that are originally recorded from broadcast television may
not be permissible regardless of whether such recordings are intended for non-profit educational use. For
example, in Encyclopedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 (1982), a court
held that the fair use doctrine did not protect the activities of the Board of Educational Services in Erie
County, New York, which made mass copies of copyrighted works taped off of broadcast television for
distribution to educators. The use was held to be infringing despite the fact that the original works were
not specifically marketed to educators. Such mass reproduction is not likely to be a fair use because it
may harm the general marketability of the copyrighted works by impacting their potential sales and
hindering their entry into or standing in the educational market.
PRINCIPLE III: DERIVATIVE WORKS
It is often necessary for educators to copy excerpts from films, television shows, and other media
and include them in compilations or presentations for illustrative purposes. The ability to copy, excerpt
and edit, capture stills, and manipulate images and sounds in this way enhances film and media educators’
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ability to analyze, critique, and teach media. The community of film and media educators believes that
such practices qualify as fair uses of copyrighted works.
In addition, students need latitude for using copyrighted media for classroom presentations or
other course assignments. More than half of the SCMS survey respondents reported that they assign
students projects that may include incorporating clips into their work. Students need the same access to
the tools of criticism, analysis, and demonstration as educators. Specifically, they may need to reproduce,
manipulate, and remix media as a part of a course. SCMS believes such student uses are fair uses so long
as the excerpts are used in the service of coursework or study and are not circulated beyond the class.
Limitations & Clarifications
Anti-Circumvention: The 1998 Digital Millennium Copyright Act (“DMCA”) amended U.S. law by
including an “anti-circumvention provision” to prohibit bypassing technological measures on digital
media that effectively control access to that media, such as on most commercial DVDs and iTunes music
and videos. This prohibition presented a problem for film and media educators because digital copies
have become the standard for classroom use, but making digital copies of DVDs and other
technologically-protected media for such use requires bypassing such technological measures. Although
the text of the DMCA made clear that it was not intended to restrict the fair use of copyrighted works, a
fair use claim does not exempt a use from the DMCA’s restrictions on circumventing copy protection.
In 2006, however, the Library of Congress created an exemption to the DMCA’s anti-
circumvention provision specifically for film and media educators. Media educators may now
circumvent technological measures for such protected works included in the educational library of a
college or university’s film or media studies department for the purpose of making compilations of
portions of those works for educational use in the classroom. This exemption is subject to renewal in
October 2009, at which time it may be expanded or modified. The community of film and media
educators believes that this exemption should be expanded to allow students to similarly circumvent
technological measures for classroom use, as well as allowing educators to circumvent protection on
materials acquired from sources outside of a departmental educational library if they are using the work
for classroom use.
It is important to note that the DMCA’s limitation on circumvention of technological measures
only applies to technologically-protected media where the underlying work is subject to copyright
protection. The anti-circumvention provision thus does not apply to: (1) technologically-unprotected
media; or (2) technologically-protected media where the underlying work is not protected by copyright
(i.e. works in the public domain). Further, if the technologically-protected work is subject to copyright
protection and the exemption does not apply, an educator still has the option of translating the digital
copy into an analog copy. This can be done by recording the video and analog feed from a DVD player
or a computer through the analog out jack. However, the translation from digital to analog frequently
results in a severe degradation of image quality, which may make this method unacceptable in many
instances.
PRINCIPLE IV: ONLINE DISTANCE EDUCATION
The community of film and media educators is increasingly integrating the internet into their
curricula and pedagogy. Copyright law has evolved to recognize that more and more individuals are
accessing educational opportunities through the internet. Educators engaged in distance education
teaching may rely on the general protection afforded under the fair use doctrine or rely on the safe harbor
of the online distance education exception to create an educational experience for online students that is
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comparable to that of their face-to-face classroom counterparts. It is unclear whether the exception
applies only to fully online courses or also encompasses hybrid courses that have a traditional face-to-
face classroom component as well as an online component. Accredited, nonprofit educational institutions
can take advantage of the exception to perform and display a variety of film and media works as part of
their courses by understanding and managing the institutional, educator, and IT responsibilities imposed
by the exception. While the online distance education exception protects the use of materials by
educators in certain contexts, activities beyond the scope of the exception may still be protected under the
broader fair use doctrine.
Limitations & Clarifications
Online Distance Education Exception: Under the online distance education exception, the requirements for the use of
copyrighted material in online distance education courses are much more specific and cumbersome than those of the face-to-
face classroom exception. The online distance education exception was amended by the Technology, Education, and Copyright
Harmonization Act (“TEACH Act”) of 2002 in an effort to put the digital classroom on par with the traditional face-to-face
classroom setting. The am ended online distance education exception allows for: (1) display and performance of nearly all
types of work; (2) transmission of course content to students in any location over the internet; (3) temporary access by
students; and (4) digitization of analog works.
Currently, educators in the face-to-face teaching context enjoy more latitude and face fewer
restrictions under the face-to-face exception than do their counterparts in the distance education context
under the online distance education exception. For example, while educators in the online distance
education context may only use “reasonable and limited portions” of an audiovisual work, educators in
the face-to-face context face no such limitation. While the responsibilities initially seem overwhelming
and confusing, they are not unmanageable. The TEACH Act imposes responsibilities on three groups in
particular: (1) institutional decision-makers, (2) educators, and (3) IT specialists. Because the TEACH
Act imposes a number of technical requirements, most academic institutions have been reluctant to
employ the TEACH Act’s provisions or to draft TEACH Act policies. Instead, they have continued to rely
on copyright licensing and fair use to ensure that their use is legally permissible. Although initial
implementation of the TEACH Act requires considerable commitment and resources, it may offer greater
predictability than just relying on the general fair use doctrine. The chart in Appendix A is meant to
simplify the various requirements of the TEACH Act so that institutions and educators can better
understand them and begin to implement them.
It is important to remember that the broader fair use doctrine may provide additional protection
of distance education activities beyond the scope of this exception.
PRINCIPLE V: PUBLIC DOMAIN
A public domain work is a work that is not protected by copyright and which may be freely used
by everyone. There are no restrictions on copying or use of such works under the Copyright Act or the
DMCA. In general, public domain works include works for which:
1. The term of copyright for the work has expired;
2. The author of a work published before 1978 failed to satisfy statutory formalities to perfect the
copyright;
3. The copyright owner has dedicated the copyright term to the public; or
4. The U.S. Government is the source.
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Educators may use a copyright term chart to calculate whether the copyright term in a work has
expired. One is available at: http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm.
This Statement was prepared by the Society for Cinema and Media Studies (“SCMS”). SCMS is a
professional organization of college and university educators, filmmakers, historians, critics, scholars,
and others devoted to the study of the moving image. For further information, please visit SCMS’ website
at www.cmstudies.org. SCMS would like to thank the Glushko-Samuelson Intellectual Property Law
Clinic of the Washington College of Law for their assistance on this project.
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APPENDIX A
TEACH ACT RESPONSIBILITIES FOR DISPLAYING OR PERFORMING
FILM AND MEDIA IN ON-LINE INSTRUCTION1
INSTITUTIONAL
FAC ULTY
INFORM ATION TECHNOLOGY
·
Your institution must be
·
Faculty may:
·
IT specialists must help ensure that access to copyrighted
a government body or an
1.
Perform nondramatic literary works;
materials is limited to students enrolled in the online
accredited nonprofit
2.
Perform nondramatic musical works;
distance course.
educational institution.
3.
Perform any other work in “reasonable and limited portions;” and
4.
Display any work “in an amount comparable to that which is typically
·
IT specialists must employ reasonable measures to
·
Your institution must
displayed in the course of a live classroom session.”
ensure that students’ abilities to receive, store, and
incorporate institutional
transmit the materials is limited. Students should receive
copyright policies to
·
Faculty must ensure that the performance or display is:
the information in a form that allows them to access or
educate faculty, staff,
1.
Supervised - “made by, at the direction of, or under the actual
receive the materials only for the class session; they
and students.
supervision of an instructor;”
should only be able to access the information
2.
Part of a structured course - “an integral part of a class session offered
temporarily. They should also not be able to store or
·
The institution must
as a regular part of the systematic, mediated instructional activities” of
download the materials beyond the class session.
disseminate information
the educational institution; and
about copyright policies
3.
Relevant - “directly related and of material assistance to the teaching
·
IT specialists must make reasonable efforts to ensure that
and laws.
content of the transmission,” not just for entertainment purposes.
their technology for the online distance education course
does not interfere with digital rights management
·
The institution must
·
Faculty may not use:
technology measures used by copyright owners to
provide notice to
1.
W orks that are specifically produced or marketed for distance
control their works, except where the 2006 exemption
students about potential
education contexts; and
applies (see above section on anti-circumvention).
legal limitations on the
2.
Copies that the educational institution “knew or had reason to believe”
use of materials used as
were not lawfully made and acquired.
·
IT specialists must restrict retention/storage of the
part of the online course.
materials to reasonably necessary periods of time
·
Faculty may not convert materials from analog into digital formats, except
sufficient to facilitate class transmission and in such a
·
The institution must
where, as outlined in 17 U.S.C. § 112(f):
way that only enrolled students may access them.
limit access to the
1.
The amount that may be converted is limited to the amount of
materials to students
appropriate works (“reasonable and limited portions” for performances
·
IT specialists may not retain or copy digital
enrolled in the specific
and “amount comparable to that which is displayed in the course of a
transmissions if they are for purposes other than the
online course.
live classroom session” for displays); and
educational purposes outlined in Section 110(2).
2.
A digital version of the work is not “available to the institution” or is
secured behind technological protection measures.
1 Sources: 17 U.S.C. 110(2); 117 U.S.C. 112(f); http://www.copyright.iupui.edu/teach_summary.htm;
http://www.lib.ncsu.edu/scc/legislative/teachkit/overview.html; http://www.copyright.com/services/copyrightoncampus/basics/teach.asp.
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