Educational Reruns

In March, you wrote that it was legal to record a portion of a TV program and include it on a DVD for continued instructional use. I've heard that the definition of fair use only allows educators to use these recordings one time-within 10 days of the original TV broadcast. Has the definition of fair use been loosened recently?

- Carolyn Essman, library media specialist, Westfall (OH) High School

There are two things to consider here: the definition of fair use and the 'Guidelines for Off-Air Recording of Broadcast Programming for Educational Use,' established in 1979. Fair use allows a person to make a copy without prior permission from the copyright holder. What ordinarily might be considered an infringement of copyright is 'excused' by fair use. Fair use is the most important section of the copyright law for librarians to understand. Without fair use, the ultimate goal of copyright-'to advance the progress of science and the useful arts'-would be impossible. A special use exception overrides other important rules and guidelines, such as the 'Off-Air Recording of Broadcast' guidelines. In other words, a use that is not allowed by the various guidelines may be permitted by fair use.

There are many documents that are referred to as fair use guidelines. It's important to keep in mind that these guidelines are not part of the copyright law. Guidelines are often submitted as reports to Congress for the purposes of amending or adding to the copyright law. In general, guidelines are negotiated with representatives of various industries and associations, who craft statements of what they think fair use might look like in the real world. As a result, guidelines tend to be phrased very specifically and usually quantify the terms of acceptable usage, such as it's fine to use one chapter of a book, or it's okay to reproduce 10 percent of a book.

There are three key things to remember about guidelines: (1) Guidelines are not 'true' fair use. True fair use is specified in section 107 of the copyright law and involves the four fair use factors. (2) Guidelines define the minimum of what is considered fair use by the parties that crafted the guidelines. Sometimes, you can do more than what the guidelines specify. (3) Depending on the circumstance, fair use may override a guideline or even another statutory exemption in the copyright law.

So, it is true that the guidelines for off-air broadcast recording state that a taped program can only be viewed in a classroom for 10 days and can only be retained by the teacher for 45 days. But you may encounter a situation where you determine that it is not reasonable to view the tape within a 10-day period. Perhaps you need 15 days in order to meet your teaching goals. You have to use good solid judgment when making these kinds of decisions and, to help guide you through that thought process, use fair use.

In my March column, the broadcast taping situation was different. I considered it a fair use by evaluating the four factors. In that situation, the teacher wanted to copy a portion of a broadcast program and retain it for as long as desired strictly for nonprofit, educational purposes.

An English teacher has asked our audiovideo technician to videotape two different versions of the same scene from Macbeth. She wants to compare the two interpretations. Is this legal?

- Joanne Cerere, librarian, Monroe-Woodbury High School, Central Valley, NY

This activity is not an infringement of copyright law based on the four factors of fair use. The key factor here is the purpose of the use: the teacher plans to use the videotapes for nonprofit, educational purposes. In fact, the English teacher cannot meet her pedagogical goals without comparing copyrighted materials. I'm not suggesting that fair use allows you to do whatever you please. But in this particular situation, if the use was restricted, the purpose of copyright-which is to advance the progress of science and the useful arts-would be thwarted.