Use of Copyrighted Digital Media in Instruction:

To stream or not to stream?

We are not lawyers: Our advice is not legal advice

But the lawyers don’t agree on this right now anyway, right up to a split Supreme Court decision…

Copyright: Basic Concepts

• Purpose of Copyright Law– To promote the Progress of Science and useful

Arts– by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries.” (U.S. Constitution, Article 1, Section 8 (1789):

Copyright Basics

Rights of Creator

-Reproduce the work in whole or in part

-Prepare derivative works, such as translations, dramatizations, and musical arrangements

-Distribute copies of the work by sale, gift, rental, or loan

-Publicly perform the work

-Publicly display the work

Fair Use Docterine

…the fair use of a copyrighted work … for purposes such as criticism,comment, news reporting, teaching (including multiplecopies for classroom use), scholarship, or research, is not aninfringement of copyright.

Copyright Basics

• Fair Use Guidelines

• -The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

• -The nature of the copyrighted work, such as whether the work is fiction or non-fiction, published or unpublished;

• -The amount of the work used in relation to the copyrighted work as a whole, such as using a poem in its entirety, or using one chapter from a long book;

• -The effect of the use upon the potential market for the copyrighted work.

Copyright Basic Concepts: Balance

• First Sale Doctrine (Right of First Sale) -A person who purchases a legally produced copyright work may sell, loan or give away that work

Copyright Basic Concepts: Balance

• 110 Classroom Teaching Limitation - Students and instructors may use, display, and perform sections of copyrighted works in a classroom setting– Legally obtained– Used for educational, as opposed to

entertainment, purposes– Used in a classroom setting, or a setting

traditionally used for teaching

Copyright Basic Concepts: Balance

• Digital Millennium Copyright Act 17 USC 1201 (DMCA)– forbids anyone from using, making, or distributing

any technology or service that bypasses effective access controls

– Exemptions• Educational uses by college and university professors

and by college and university film and media studies students

Copyright Basic Concepts: Balance

• TEACH Act – 110(2) –• Films and other audiovisual works may be

transmitted digitally, but not in their entirety. Only a reasonable and limited amount of a work can be used. – Original work must be legally acquired– Educational material designed for online courses is

not covered– Items that would normally be in a course-pack are not

covered

Remember

• Fair Use + – classroom limitation – TEACH act– DMCA

• Red Flag: If anyone starts spouting absolutes, be wary…remember, it is all about balance

Educational Use

• Face-to-face teaching: Almost any use is OK, including screening an entire film.

• TEACH act extends many classroom privileges to distance ed. via course management systems. – Does this include entire films?– Does it apply to hybrid course management

systems as well as to true distance ed.?

Classroom vs. digital classroom

• Spontaneity excuses instructor from asking permission to copy/perform a work. Course management systems are not spontaneous.

• Face-to-face teaching imposes time limitations on the amount of material that can be presented. Time-shifting via course management systems allows for presenting a lot more material, e.g. optional films, whole books, etc.

Class screenings

• Buy a DVD copy for $20, or maybe the school library has to pay $200 “institutional price”

• Show it in class.• Legal for the life of the DVD.

Class screenings online• Buy a DVD copy for $20, or maybe $200…• Set up / buy into a system for creating

streamable video from DVDs.• Capture or rip & format for your server• Serve it up, forever after…

ILLEGAL??

The $$$ go to equipment & software vendors, not the film rights owners.

Some of the language regarding streaming video for courses:

• the performance of a nondramatic* literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session…

•  an integral part of a class session … • directly related and of material assistance to the teaching content …• reception of such transmission is limited to students … enrolled in the course …• [the school transmitting] institutes policies regarding copyright, provides informational

materials to faculty, students, and relevant staff members …; and … applies technological measures that reasonably prevent retention of the work in accessible … for longer than the class session; and

• does not … interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination….**

--Section 110 of Title 17, ch. 1

*excludes dramatic films? **modified by Rulemaking of 2008 and 2010; it’s OK to interfere with technological protections to make clips from DVDs.

The peculiar position of

language centers

Language learning requires media. “Language labs” made it available.

--with permissions from the rights holders.

(because that’s cheaper than doing it themselves)

Now the publishers, and faculty too, manage distribution themselves.

Aside: using such digital materials without permission

Any educational media—that is, digital materials developed specifically for teaching a subject online—cannot be streamed or copied without permission.They are explicitly excluded from any kind of free digital use in education by the 2002 TEACH act.

So can I stream the French movie my class is supposed to watch?

Required work! But I can’t spend precious contact hours showing movies! Questions to be asked:

• Do I own a legal copy? YES• Do I have the ability to make,

store, and stream a high-quality digital version of the film? YES

• Can I password-protect the site so that only my students can access it? YES

• Can my students access the stream conveniently? YES

• Do I have permission? Well…

Do I have permission? NO. I don’t know who to ask and it’s

probably too expensive….Even if all the other conditions are met, I do not

have the right to digitize & stream it without permission—this week, anyway.

Next week, maybe!

Now in litigation:• Georgia State case: can a library offer

electronic coursepacks to students (e-reserves) without asking permission?—important for the principle of hybrid courses.

• UCLA case: can a university set up a program to stream films (educational, dramatic) to students as required viewing, observing the provisions of the TEACH act?

This weekStudents can watch the DVD at the

library or media center or language center, the way they did last year. OR -- I can require* students to subscribe to Netflix and get the movies to watch that way.

*I have to require it so that scholar-ship students can get their subscriptions paid as part of their book bill.

OR– the students can watch illegal streams online….

No, wait!I just found out that the library has licensed a group of streaming films from Swank Digital Campus. 4 of the 12 films from the book are in Swank’s group.But this limits my choice of movies, and it’s so expensive that the library doesn’t plan to renew the subscription next year.

Aside: a reminder about fair use

In the US, without asking permission, you can use a legal copy belonging to your institution to digitize CLIPS of the movie and present them to students in class for discussion.

– In class = via a website only your students can access (TEACH act).

– AND—according to a 2009 ruling—you can legally circumvent the anti-copying encryption on the DVD.

– Fair Use criteria apply.

Why are movie rights so expensive?

• It is a collaborative medium. Many folks with fingers in the pie.

• Traditionally films have been a large budget item for libraries, film societies, etc.

• The rights have become detached from the physical object or even access to that object.

And

Film rights owners often do not have the rights to all the elements of the film:

– songs on the soundtrack– photographs or news footage

Unless they bought the right to keep using these elements in any medium in perpetuity, the rights owners of the photos, songs, etc. can sue…. and clearing these rights ($$$) is a continuing expense.

Rights film creators can sell• Theatrical distribution, by country• Hard copy distribution, by country• TV broadcast rights• Public performance of hard copy, free to public or

with admission charge• Permission to copy and/or change formats• Digital distribution or whatever comes along next

New technology generates new saleable rights. $$$$$$$$$

$$$$$$$$$

Protecting rights to hard media1. Copyright law protection2. DRM (Digital Rights Management) = technological

protection– valid only if upheld by law (Digital Millennium Act,

DMCA)– Region coding (RPC) and enhanced version (RCE)--not

specified in DMCA, but assumed to be included in 2003 rulemaking

3. Contractual protection– “Institutional licenses” & “educational PPR” contractually

limit fair/classroom use– Contractual limitation of rights always trumps legal rights

When all video is delivered digitally, there will remain:

EULA on download—contractual protection, with no legal exceptions.

New models for dealing with digital rights

• Player-specific downloads (iTunes) • Cloud-based password-protected access

(Amazon, Netflix, Hulu)• Googlebooks: digitize first, ask for permission

& offer payment later (recently discredited in court)

• Zediva –rental of a streamed single DVD playing in a DVD player.

An example of a film distributor dealing with educators: Kino Lorber

http://www.kinolorberedu.com/terms.php

• “Public Performance Rights [PPR] allow educational and non profit groups to exhibit our films to groups of 50 or fewer individuals where admission is not charged.”

• “digital site licenses [for educational institutions] maximize the number of individuals who have access to the film.”

• “Almost all films in our library are available with PPR, without PPR and with digital site licenses.”

Example of Kino Lorber pricing

Home use $29.95

Educational Pricing (with PPR) $$229.00

Digital streaming license(for Kino Lorber Classics)

$$$

One semester $349One year $589Three years $999Five years $1499Not available in perpetuity

Metropolis (2010 Restoration)Dir. Lang (B&W, silent, 1927, English intertitles),140 min.

A public domain film in a copyrighted restored version compiled from various prints

Few companies own the rights to an item in perpetuity, so they can’t sell streaming rights for more than a few years.

An example in the news: Ambrose Media

• Buys up all the rights to educational videos (e.g. 1973’s Ascent of Man)

• Sells them & resells them to institutions at a high “educational” price which includes PPR rights – 16mm– VHS – DVD – Streaming from Ambrose server to your computer or

proxy server, contracted per annum

Some pricing models

Swank KinoLorber Ambrose

Type of offeringMany classic and recent theatrical films of all genres

(1) classics, often restored silents; (2) contemporary foreign films

Classic made-for-TV educational series, e.g. BBC Shakespeare

License75 films from their catalogue; 1 film for 1 semester = 1/75

1 film 1 play or series episode

Duration1 year 6 months 1 year

ProductLink to film on their server digitized version or rippable

DVDlink to film on their server

Who can viewStudents enrolled in class Anyone with institutional

passwordAnyone with institutional password

Cost $9000 (about) (1) $350 (2) $200 $25

Longer term available?

yes, but not in perpetuity in perpetuity for some items in (2)

yes, not clear re. perpetuity

“UCLA lawsuit”

• UCLA, having purchased copies at institutional prices from Ambrose in the past, digitized and streamed some of its BBC Shakespeare Plays series, originally presented on TV 1978-1985.

• Then Ambrose came up with its own streaming service, $25/item/year for campus-wide access.

• The Association for Information Media & Equipment (A.I.M.E.) representing Ambrose called on UCLA to cease and desist.

• UCLA took the streams down, then put them back up…. and is fighting the case.

Fair Use Analysishttp://librarycopyright.net/fairuse/index.php

Fair Use Analysis

Fair Use Analysis

Response• Lola rennt - Teil 1 - Arbeitsblatt• • The following expressions are listed in the order in which they occur in this section of the movie. Match them with

the correct translation / subtitle, and try to use them in class • • ___ Verdammt a. And then?• ___ Du bist (doch) immer pünktlich b. bum• ___ (Das) ist egal c. Calm down • ___ Was ist (denn) los? d. Damn it• ___ Hilf mir e. got it?• ___ Ich weiß nicht, was ich machen soll. f. Help me• ___ Ganz ruhig g. I don't know what to do [lit.: I don't know what I should do]• ___ Und dann? h. It doesn't matter • ___ der Penner i. Love can do everything• ___ zu spät j. Shut up• ___ Liebe kann alles k. Stay where you are • ___ Halt die Klappe l. too late • ___ kapiert? m. What's wrong? What's going on?• ___ Bleib, wo du bist n. You're always on time • ___ Du spinnst o. You're nuts

Response• 1. Schreiben Sie zwei von den einfachen [=simple] Fragen am Beginn des Films! [01:45 - 02:00]•

– a. W_________________________________________?•

– b. W_________________________________________?• • 2. Welche Farbe hat das Telefon? __________ Und die Telefonzelle? __________• • 3. Lola hat _________ _________ Haare und Manni hat _________ _________ Haare. Ronnie hat _________ Haare.• • 4. Wo verliert [=loses] Manni die Tasche?•

– a. Im Bus b. Im Auto c. In der U-Bahn [=subway] d. Auf der Straße [=street]• • 5. Wie viel Geld [=money] war in der Tasche? DM ___________________• • 6. Wie viel Zeit hat Manni / hat Lola? _____ Minuten.• • 7. Bis [=until] wann wartet [=waits, will wait] Manni? Bis _________ Uhr.• • 8. Zu wem geht Lola? •

– a. Zu ihrem Vater b. Zu ihrer Mutter c. Zu einem Freund d. Zu einer Freundin• • 9. Was möchte die Mutter? •

– a. Shampoo b. Seife [=soap] c. DM 100.000 d. Bier

Changes

• Move to Bluestream-centralized data access management system– Our in-house system was not designed to last, nor was it

scalable– System modeled on UCLA streaming service– More security on media than our system had– less control over access dates

• UCLA lawsuit –suing university as well as naming individuals involved in

• Market developments: streaming and licensing is more widely available

Fair Use Analysis

Fair Use Analysis

Current Options

•Make Clips to stream•Find market mechanism to stream•If no such mechanism exists, evaluate for Fair Use

Commercial Streaming: one option

VHS $169.95DVD$169.95DVD + 3-Year Streaming $254.933-Year Streaming $169.95

Streams from their serversPut behind CMS

So you want to stream…technical considerations

Item Model Price

Video Standards Converter KDV 5000 139$

9" Color Video Monitor JVC TM-9U 323$

Combo DVD Recorder Toshiba DVR670 149$

Multi-standard VHS/DVD player LG V271K-W1 149$

DVD Recorder Panasonic DMR-ES15 150$

MiniDV/S-VHS VCR JVC HR-DVS3U 690$

Time Base Corrector Data Video TBC-1000 475$

Streaming Video Server +memory array $10,000

Wirecast Software 500$

12,575$

Data Management Considerations: User Interface

Pather Panchali/Song of the Little Road Apu Goes to School Pather Panchali/Song of the Little Road Train Sequence Pather Panchali/Song of the Little Road Indir Dies Pather Panchali/Song of the Little Road Durga Dies Pather Panchali/Song of the Little Road Harihar Comes

Home Pather Panchali/Song of the Little Road Ending

Apu Goes to School.mov Train Sequence.mov Indir Dies.mov Durga Dies.mov Harihar Comes Home.mov Ending.mov

Data Management Considerations• DC_Title Pather Panchali/Song of the Little Road Apu Goes to School• DC_Creator Ray, Satyajit • DC_Subject • DC_Description 1950s Apu (Subir Bannerjee) goes to school. • DC_Publisher Artificial Eye • DC_Contributor • DC_Date 1955• DC_Type • DC_Format DVD 125 min 02:24, 987,2 MB, • DC_Identifier Apu Goes to School.mov • DC_Source DV DHC 23028 Disc 1 Region 2 Chapter 5, 00:19:13 • DC_Language Bengali/English sub • DC_Relation • DC_Coverage • DC_Rights • M_Identifier • M_Publisher01 • M_Steward LSA Language Resource Center Dass, Manishita • Notes The subtitles have been cut off

Is streaming the right solution for you?

Streaming can be expensive, as well as time and labor intensive! Streaming is not an answer to reduced budgets!