Carrie On Copyright

In this occasional column, Carrie Russell, the American Library Association's copyright specialist, will answer questions from our readers about copyright issues. Questions may be e-mailed to prx-slj@reedbusiness.com . In the subject line, type the word 'copyright.' Please note: Carrie's comments are not to be construed as legal advice.

Q: I wanted to get some videos of the series Junkyard Wars . I called Discovery's K-12 catalog and was told that these videos may not be shown in schools because they are for home use only and have no public performance rights. I explained they would be used under fair use-- face-to-face instruction. They still insisted they were for home use only. They agreed to sell them to me. At first they would not let me use a purchase order, but they relented. What's going on?

Jackie Keith, Librarian, Battlefield Middle School, Fredericksburg, VA

A: Section 110 of the copyright law provides for a limitation on the exclusive right to publicly perform or display a work. One of these exemptions is the performance or display of a work in the course of face-to-face teaching activities of a nonprofit educational institution. This means that a teacher or a student can show a video or other work in the classroom without the prior permission of the copyright holder.

But here are a few important twists. First, the display and public performance exemption does not extend to the virtual classroom, at least, not yet. Congress is considering new copyright legislation that would, among other things, extend the exemption to allow for public performance and display of nondramatic literary works wherever the 'classroom' might be in the distance-learning environment.

Second, Section 110 applies, as with all copyright law, to copyrighted materials that have been purchased, not rented, leased, or licensed. We are accustomed to the licensing of digital materials, but the licensing of tangible goods, like videos, is also a possible business model that video publishers may choose to explore. In these cases, the library would not own the videos it purchased, so the copyright law and its exemptions might not apply. In the leased environment, a vendor could craft a license agreement that circumvents all copyright exemptions, including public performance in the classroom. Our role as librarians is to try to negotiate more acceptable license agreements whenever possible.

Also, non-negotiated shrink-wrap licenses could be applied to videos. Some courts have interpreted these license terms, which may restrict public performance and display, as legally binding. You cannot negotiate these terms, you have agreed to them just by opening up the package. For more information about shrink-wrap licenses, see ALA's Web site on the Uniform Computer Information Transactions Act at www.ala.org/washoff/ucita.