The Replacements

What can you do when your videotapes are damaged?

By Carrie Russell -- School Library Journal, 5/1/2006

One of our school’s educational videotapes is cracked and won’t play anymore. Is it legal for us to borrow the same selection from the public library and copy it, since we have already purchased a copy? —Jana Fullerton, librarian Olympic Middle School, Auburn, WA

No. You cannot make a copy of the tape without prior authorization. Section 108, the part of the copyright law that deals with reproduction of materials for replacement purposes, suggests that a librarian is allowed to make a copy of a damaged work only if a new replacement copy can’t be obtained at a fair price. So you have to make a reasonable attempt to buy an unused copy at today’s going rate before you’re allowed to make an unauthorized replacement copy.

As part of a staff-development session on character education, our assistant principal showed a 20-minute segment of Remember the Titans. I thought that we were within the fair-use guidelines, since the movie shows a number of techniques that can be used with our students. But I was later told that we had violated the copyright law. Who is correct? —Mary Ellen Cutler, media specialist/sr. projects coordinator, Eastern Randolph High School, Ramseur, NC

Based on an analysis of the four fair-use factors, I think you’re right. As I have previously noted, fair-use guidelines are not part of the copyright law. They are simply suggestions that various stakeholders (including publishers, librarians, teachers, and writers) have agreed on. The guidelines state that certain amounts of works can be used without violating the copyright law.

Factor one asks us to consider the “purpose of the use.” Was it shown for nonprofit, educational purposes (which is fair) or was it used for commercial gains? Although Remember the Titans wasn’t screened in the face-to-face, teaching classroom as part of the curriculum (which would be considered a “pure” nonprofit, educational use), your administrator’s use still leans toward a fair-use interpretation. Factor two addresses the type of material we are using. Motion pictures tend to be guarded more heavily than factual, scholarly, educational sorts of materials, so this particular use is unfair. The amount of the motion picture used is the third factor. Generally, it’s deemed fairer to use a smaller amount than a larger amount. In your case, only 20 minutes were screened—presumably the part that directly pertains to character education. Finally, the fourth factor addresses the effect of the use on the work’s market. Assuming that the video or DVD was lawfully acquired, the impact on the film’s market is potentially positive. Why? Because viewers may be inspired to buy or rent their own copy of the film. The bottom line? Your unauthorized screening of Remember the Titans was not a copyright infringement.

Do you know of any public school districts that have been fined for showing videos other than in a classroom setting? —Sandie Liacouras, librarian, Strath Haven High School, Wallingford, PA

Public records are not maintained for legal actions in which settlements have been made or resolved “out of court.” Still, some people have tried to keep track of alleged infractions. However, bear in mind that their lists may not be accurate. Also, many institutions won’t reveal that they have paid a fine—or as a condition of the settlement, they have agreed to keep silent regarding the terms. Carol Simpson, an educator and the author of books about copyright issues in schools, has compiled a list of alleged infractions that is available at web2.unt.edu/children/copyright/list.cfm. Simpson’s list contains nine reports of school districts that have been fined. Most of these reports were submitted anonymously, and the few that suggest that legal action was taken do not provide court citations. It’s interesting to note that most of the alleged infringements were reported to copyright holders by school employees. None of the reports deal with unlawful video screenings. Instead, the majority of them deal with software piracy, making the alleged infractions a matter of contract violation rather than copyright infringement.