DVDs

Before we jump into things, let me first offer this unambiguous assurance: Doubts, begone! The use you contemplated is allowed by law.

Okay, with that out of the way, let's break it down.

As we have reviewed on “Ask the Lawyer” before,[1] under Copyright Section 110.1, nonprofit education institutions can show physical copies of movies in class,[2] so long as the copy they are viewing was not “unlawfully obtained.”

Or, as the law puts it, it is not infringement for a school to engage in:

... 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;

When it comes to what constitutes knowledge of an “unlawful” copy, Congress commented on this in House Report 94-1476:

The exemption [from infringement] is lost where the copy being used for a classroom performance was “not lawfully made under this title” and the person responsible for the performance knew or had reason to suspect as much. This special exception to the exemption would not apply to performances from lawfully-made copies, even if the copies were acquired from someone who had stolen or converted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110(1) in such cases, the copyright owner might have a cause of action against the unauthorized distributor under section 106(3), or against the person responsible for the performance, for breach of contract.

Again: this means the in-class showing contemplated by the member can happen, so long as the school doesn't know the copy was unlawfully made (or didn't make the unlawful copy directly).

From the perspective of an author or owner of a work, this can be frustrating: it means that faculty at a college or university can show a movie, read a poem, or display a painting without the permission that, without the 110.1 exception,[3] might be required.[4] 

For purposes of this question, we're going to assume that the use proposed by the member checks ALL the 110.1 boxes:

• The use is for a not-for-profit educational institution;
• The use is by a faculty member or student; and
• The use will be confined to a class in which the students are enrolled (not a student club or an open event on campus).

It also sounds like the school is the owner of the actual physical copy, although that is not required to exercise rights under 110.1.[5]

So, with the member having met all the criteria for an in-class showing (or “performance”) to be held under 110.1, can a notice with a physical copy, saying essentially, “No 110.1 here, you must get permission to play this in class, or we'll sue!” remove the law's protection?

No.

If the law worked that way, every 110 protection from liability for infringement (which ranges from protections for education, to protections for people with disabilities) could be revoked ad hoc. The law might as well cease to exist. Happily, laws usually don't work that way.

Of course, before being able to give such a decisive answer, I checked the most recent case law and copy of the status on LEXIS-NEXIS. 17 U.S.C. 110 has not been amended since 2005. There has never been an opt-out provision that an owner can invoke with a notice on a physical copy. There is no case law that suggests such an opt-out exists.

Although I am able to give a decisive answer to the fact pattern, the member was right to take a pause and check in when they felt unsure. Copyright, especially in academia, can have some odd-twists and turns. But even though this notice tries to pull the rug out from under the feet of educators, 110.1 abides. [6]

This question was submitted by a system serving elementary and secondary schools.

The answer for those schools (and for higher education, too) is: if the viewing of the DVD is tied to the reading of the book and the content is part of the class/curriculum, then YES, it can be viewed in class.

This exception to infringement by a school is found in 17 U.S.C. 110  (1), which states:

...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, to be clear: at a not-for-profit school, as part of the curriculum, in the school's designated learning space, the "movie based on the book" can be viewed as part of  the curriculum...so long as the copy being watched was not pirated or otherwise obtained through the shady  (but now losing ground to illegal streaming) DVD black market.

Thank you for this question.

There are a few ways a teacher may be able to show the remote-only students a specific video.

First: check the license to the video.  It may expressly authorize that type of use.

If that doesn’t give assurance...

Second: check to see if the school is set up to follow the TEACH Act.[1]

The TEACH Act is Section 110(2) of the Copyright Act.  It allows for the transmission of certain copyright-protected material by accredited educational institutions under certain conditions, if the school is set up[2] to follow the law.

For the viewing of videos, those "conditions" are:

• The video shouldn't be a product intended solely for instruction via digital networks (the product should say this if it is);
• The copy used must have been obtained legally;
• You can't show the entire video (but you can show a "reasonable and limited" amount);
• That the video is part of the curriculum;
• That only the students enrolled in the class, and the teacher, are watching;
• That the school itself takes a few steps to guard against infringement.

If these conditions are met, the remote learning can commence!

The TEACH Act was handy before COVID, but these days, it is invaluable.  This is why every school district, accredited private school, college, and university should have a "TEACH Act Policy"—so learning can continue as strongly as possible.

[1] Other "Ask the Lawyer" TEACH Act commentary is at RAQ #74 and RAQ #155

[2]"Set up" means that the school: institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members about copyright and copyright protection, and applies technological measures that reasonably prevent the transmitted material from being duplicated/published.  For the full recital of what must be done, see the law at https://www.law.cornell.edu/uscode/text/17/110.

VHS-to-digital conversion can open up options for accessibility under the ADA. 

Many people have treasured family memories they need to convert a more accessible format.

A converter can also help with the creation of critical and new works.

This converter will be a really valuable service for your patrons.  But your staff member is right to be cautious.

“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives).  In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives. 

Those previous answers cover some of the fundamental elements of this question.  They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded[1] from the protections of Section 108, even when the copy is being converted from a medium that is obsolete. 

What does all this mean?  The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern

Fortunately, Section 108[2] has a remedy for this problem.  So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.

The “unsupervised” requirement is critical, here.  If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply[3].

So, a few things to help you be cautious:

1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.

2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.

3)  Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs[4] of each one) should be promptly addressed through your patron code of conduct.

Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet?  Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:

The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use).  However, use of library resources to generate or access copies beyond those rights cannot be supported by our library.  Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.” 

Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.

Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!