Tale of the Tape: Can Noncommercial TV Recordings Be Shown in School?

I just discovered that individual episodes of educational television series, like Schoolhouse Rock!, can be purchased from iTunes. Is it legal to show them in the classroom?

Probably not. When you signed up for iTunes and clicked “I accept,” you most likely agreed to limit yourself to “personal, noncommercial uses.” Just to be sure, check the terms and conditions of iTunes’s contract. If you discover those restrictions don’t apply, then go for it. According to the provisions of the TEACH Act and fair use, it’s alright to show the programs in the classroom.

Our teachers would like to show some episodes of Bill Nye the Science Guy, the educational series that airs on PBS, to their classes. Is it okay to record these programs? And if it is, how long are we allowed to keep the recordings? Must they be shown within a specific amount of time?

According to the guidelines for “Off-Air Recordings of Broadcast Programming for Educational Purposes,” which were created by education and media industry representatives, it’s OK to record the episodes. The recordings can be kept for up to 45 school days, and the episodes must be shown within 10 days of being recorded. If your teachers want to show the programs a second time, that’s fine—as long as the viewing takes place within the initial 10-day period. After 45 school days, the recordings must be erased or discarded.

In some respects, this is a situation where the “Off-Air Recordings” guidelines appear to be more lenient than those of fair use. But remember, the “Off-Air Recordings” guidelines don’t have the weight of the law behind them, while fair use’s do (fair use is covered under section 107 of the copyright law). Since commercial recordings of the “Bill Nye” series can be purchased, the teachers’ recordings could arguably have a negative effect on the work’s market—and, therefore, such a use wouldn’t be a fair one.

Why is there such a discrepancy between the “Off-Air Recordings” guidelines and fair use’s? Back in 1979, when the “Off-Air Recordings” guidelines were created by copyright holders and members of educational institutions and creative guilds, they probably never expected that digital technology and the online marketplace would take off so quickly—or become such a huge deal. After all, 30 years ago, TV channels and programs were typically free and the Internet was unknown to the vast majority of people. Nowadays, of course, the Internet is everywhere, broadcast television is a much more lucrative business, and cable TV has become a staple in most American households. Although the “Off-Air Recordings” guidelines say that it’s acceptable to record TV programs, a court could ignore them—focusing instead on the four factors of fair use—and rule that it’s illegal to record the “Bill Nye” series because of the potential effect on its earnings in the marketplace.

So what should you do? Follow fair use? Follow the “Off-Air Recordings” guidelines? My recommendation is to rely on fair use instead of the “Off-Air Recordings” guidelines. A fair-use analysis suggests that it isn’t fair to record the “Bill Nye” programs when they’re readily available through a number of commercial outlets. As librarians, we should work with the copyright exceptions that are afforded to us by law, and not ignore them when some other guidelines work to our advantage.

Our school has a SMART Board in every classroom. Some of our teachers have been using the media center’s scanner to copy entire books. Then they use their SMART Boards to share the content with their classes. Is that legal?

If the scanned books are required textbooks, I’d say this is an infringement. Your school should purchase a textbook for every student. If the books aren’t required reading, then it’s all right to scan small portions of them, as long as the books have been lawfully acquired.