Flunking the Test

I am the librarian at a small private school with 275 students in grades K–9 and a child-care center with 90 children. We receive a lot of videos that are donated by students' parents. Since we are a for-profit school, do we need a license for teachers to show the videos in their classrooms? All the copyright literature on fair use that I've read seems to apply to only public schools or nonprofit institutions. I am in a quandary and feel very shaky about what to do.
—Barbara Semple, librarian, Shaker Road School, Concord, NH

You are correct. Section 110, the copyright exemption that allows public performances in classroom situations, applies only to nonprofit, educational institutions. Does that mean that you're out of luck? Not necessarily. Fair use is not restricted to public schools and libraries. But a fair-use determination is more likely to occur in a nonprofit setting.

In your particular situation, teachers are showing the entire video to their classes. Plus, since the videos are highly creative and often quite expensive to create and buy, these factors lean against fair use. I'm assuming that the videos have been lawfully purchased, so the effect on the market seems negligible. On the other hand, it's possible to argue that there still is an effect on the market. After all, the copyright holders have developed a revenue stream by licensing the videos for public performances, and you're not paying the licensing fee.

This leads me to suggest that, although you're using the videos for educational purposes, it's not a fair use. By the way, I can imagine a situation where the use of a video in a for-profit classroom or institution would be fair: for example, perhaps the video is fact based or news oriented, and its use is extremely timely.

You must ultimately decide if the use of the videos is a fair use. To do that, you'll need to weigh all of the fair-use factors one by one. It is likely that it will be easier for you to sign on with a licensing clearinghouse that handles videos and public performance rights and be done with it. However, there may be times when you end up paying for something that is actually not a violation of the copyright law.

One of our teachers has created an annotated summer reading list for our students. She has taken the annotations from the American Library Association, Kirkus, Amazon.com, and other reputable reviewers. In most instances, she has indicated the source of the review—for example, "Copyright American Library Association. All rights reserved." But for Amazon's reviews, she's simply cited the names of the people who wrote them, without referring to Amazon. May she legally distribute this list to our students, or must she first receive written permission from the publishers? Also, can she give copies of the list to local bookstores and public libraries so they can stock the books?
—Virginia P. Dawe, head library/media services, Germantown Academy, Germantown, PA

I suggest that this activity is an infringement of copyright. It sounds like the teacher is creating a collected work—copying annotations in their entirety and putting them all together for the reading list. Since the annotations meet the requirements for copyright protection in that they are original, creative works fixed in a tangible medium, copying is an infringement. Remember, copyright protection now occurs automatically: as soon as a work is created and fixed, it is copyright protected. The Amazon reader who provided a review probably does not know and possibly does not care that the review is copyright protected, but it is. I would expect that, if the teacher requested the use of the reviews, the copyright holders would provide permission.

Another possibility for the teacher is to excerpt quotes from reviews and provide attributions (Kirkus says, "The story is a fascinating page-turner, sure to delight fans of historical mysteries…"). The teacher could also write part of the review herself and use quotes here and there from published reviews.

Distributing the list to others, including bookstores, is problematic because the reading list itself has not been lawfully made. If the reading list was lawfully made or acquired, distributing copies to the students or to select bookstores would be fine.