Digital Complications

We would like to digitize videos to broadcast from our computers to the classrooms. Even though the videos have public performance rights, will we be violating copyright law by changing the format of an item?
—Deb Jones, librarian/media specialist Thornapple Kellogg School and Community Library, Middleville, MI

I hate these questions and, in all honesty, I have tried to avoid them. But I am feeling a bit more courageous, so I'm going to give it a shot. Digitizing—in other words, copying—videos to a server is generally an infringement of copyright. Probably one should obtain permission from the copyright holder.

Why am I hedging? If one reads the TEACH Act—the amendment that revised Section 110, which addresses public performances and displays—digitizing videos for teaching purposes may be OK. It's a stretch, but the TEACH Act may apply if all of the following conditions are met:

• The videos are digitized at the direction of a teacher in an accredited, nonprofit educational institution;
• The videos are digitized when needed for class (in other words, not ahead of time);
• The digitized version is used for teaching purposes only and would not be used in any other way;
• The digitized version is in a fairly technologically secure "place" that limits the possibility that individuals other than enrolled students will see the digitized copy and limits the possibility that additional copies can be made and distributed;
• Access to the digitized version is blocked after use;
• A digital version of the video is not available for purchase or a digital version available for purchase is protected by technological protection measures that prevent it from being used for classroom purposes;
• The teacher doesn't share the digitized copy with another teacher;
• Showing the digitized version is essential to teaching goals;
• If the video is a dramatic literary work (a video with a dramatic element like the majority of Hollywood pictures) only the amount necessary to meet the teaching goal is shown to the class.

From a copyright perspective, the problem is not concurrent viewings or public performance rights—it's making copies. Since the copies are digital, the potential negative impact of the infringement is arguably greater. Although a fundamental tenet of copyright is that the law be technology neutral, digital works are treated differently as we have just witnessed with the superabundant TEACH requirements.

Digitizing videos and storing them on video servers for teaching purposes is a fairly common practice, yet there is no case law to help us understand if this activity is really an infringement in the eyes of the court. My guess is that video distributors will offer the right to make digitized copies just as they offer public performance rights—for a fee. Or a new market will develop that provides this service to schools on a subscription basis.

Our library is planning a "tailgate party" to be held in one of our meeting rooms during football season. We would like to have a television in the room showing a live broadcast of a game. Is this a violation of broadcast rights? Can we show a tape of a previous game?
—David Fulton, computer literacy librarian Liverpool (NY) Public Library

Watching network broadcasts (ABC, NBC, CBS, your local independent television station, or PBS) in a room at a school with a group of people is analogous to watching network TV in your living room with a bunch of friends. There are problems if the general public is invited or if you are charging a fee or if you watch the game in a place of business, such as a restaurant or bar that exceeds 2,000 square feet in size. Rules for cable broadcasts are stricter. Your proposed use will probably be infringing, in part, because cable is a subscription service.

My guess is that you can watch a tape of a previous game because "time-shifting"—taping a program to watch at a later date—has been recognized as a lawful activity by the Supreme Court (Sony Corp v. Universal City Studios, Inc.). It's worth noting that the National Football League takes copyright very seriously, and the NFL pursues litigation if it believes an infringement has occurred.