We are aware of the requirement to have a movie license to show a movie in a public forum, such as in a public library and the restrictions associated. My question is: are there restrictions to providing access to television programming, such as news events, in a public setting?......
The lawyer answers:
There is a simple answer to this question, although it stands on a mountain of conflicting law, international disputes regarding IP, and arguments about music rights[1].
Section 110 of the Copyright Act allows an entity to have one medium-sized tv (of a kind commonly used in private homes…no JumboTrons), showing a broadcast of anything but songs[2], so long as there is no admission charged, and the programming isn’t re-transmitted (streamed, split for viewing on another device, etc).
The member then took her question to the next logical place…
Taking this a step further, do live streaming of such events accessed via the Internet have such restrictions? i.e. during the recent hurricanes, a public library provided viewing access to live streaming news events to members of the public (public forum). Is such legal? Can a public library "broadcast" internally - for the viewing ability of the public - show television programs, news reports, live streaming videos, etc.
The lawyer answers….
This is where things get complicated. There are any number of law review articles, commentaries, and cases debating how copyright law, communications law, and contract law intersect on this issue. While “streaming” has become a catch-all term for any audiovisual (or audio) work accessible via the internet, the precise technology behind the display plays into the analysis[3]. Further, many news sites require log-in information connected to an individual person to get full access, so the person whose account is associated with an allegedly non-conforming or infringing use could face personal consequences.
The bottom line: an institution would need to exercise caution on a case-by-case basis to re-transmit information, since the 110(5)(a) exception might not apply. But if the content is on one screen, no admission is charged, and there is no re-transmission, it might be possible.
The member then asked the “Ultimate YouTube” question:
While not, in my opinion the same as showing the news, a television program, etc.....The following is known about YouTube "terms of service": "Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content."
This question highlights exactly what I had to talk about above: that the licensing terms of the websites may bring further restrictions than the copyright law. That said, here is an important point for libraries, the guardians of information: Section 110 is not the only exception to infringement for the transmission of audiovisual works. Fair Use, in Section 107, and the “Library and Archive Exception, in Section 108, can also apply.
Of course, every “Fair Use” requires a fact-specific analysis. But it is certainly possible that a library could aggregate and then re-transmit select streamed information in a way that met both the emergency response needs of the public, and the 107 criteria (although there could still be a risk of a civil claim based on violating the “terms of use” of the site). The key would be avoiding, generally, wholesale copying/displaying of non-transformative content[4], and making sure no particular staff member is vulnerable to being accused of violating a “terms of use” license.
As to Section 108, the capture and archiving (and perhaps, later, lending/copying) of streamed content goes beyond the scope of this reply, but it’s an issue to keep in mind. Nowadays, a great amount of valuable content is “born digital,” and the meaningful archiving of such content may fall within a particular library’s mission. For this, any library should consider exactly what it wants to do, the precise nature of the source material, the precise legal concerns….and develop a strategy to do it. This will only get more important in the decades to come.[5]
[1] Trust me. It’s a mess. Just do a search for “Berne” and “homestyle exception” and “WIPO.”
[2] This answer does not address playing audio works, which fall in part under 110, but require different analyses (yes, more than one).
[3] For instance, in the case Joe Hand Productions, Inc., v. Maupin (2016, U.S. District, EDNY), the court assessed a claim based on a saloon owner using a Roku device to display a Mixed Martial Arts fight accessed through his Cablevision account. The court refused to dismiss the claims for both copyright infringement and violation of the Federal Communications Act. As of this writing, that case is still in its pre-trial phase. Of course, the saloon probably pulled in a lot more money for hosting an MMA re-transmission than a library will pull in for providing emergency news access, but the financial rewards of the performance are not the only factor.
[4] I appreciate that during a time of extreme need, when lives are on the line, a cost-benefit analysis might also cause someone to throw caution to the wind and just re-broadcast the content without doing a Fair Use analysis! I don’t advise that, but I don’t want readers to think I am a heartless legal robot.
[5] Consider the various databases of valuable research/data that have changed format and content due to administrative changes in the federal executive branch, for instance.