The Long and Short of It

Would you please explain the concept of public performance rights? I use Follett’s Titlewave, and I’ve noticed that some of the educational videos do not include public performance rights. Does that apply to a video purchased for classroom use? Also, some videos, especially those from PBS, are labeled “Home Video.” Does that mean they cannot be purchased for use in the classroom?
—Georgia Chagala, librarian, Oak Valley Middle School, San Diego, CA

Public performances are defined as a performance of a work at a place “open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”; or a performance of a work that is “transmitted to a place open to the public (as described above), by means of any device or process, whether the members of the public capable of receiving the performance… receive it in the same place or in separate places and at the same time or at different times” (Section 101). Performances of a stage play at the local playhouse, screenings of a film at a movie theater, performances by the city’s orchestra or opera are all public performances. Watching a film in the classroom is also a public performance. Lower courts have argued (Columbia Pictures Industries, Inc. v. Aveco, Inc.) that even watching a video in a private room at a video rental store is considered a public performance.

The right of public performance is an exclusive right of the copyright holder (Section 106[4]). One must seek permission to perform a work publicly except when the law provides a limitation to that exclusive right. For public performances, nonprofit educational institutions can turn to Section 110, which allows unauthorized public performances under certain conditions. For example, unauthorized public performances are allowed in face-to-face classroom situations. Unauthorized public performances are also allowed in many digital and/or distance-education situations (Section 110 [2]).

Unless you have made a contractual agreement forfeiting your federal copyright law exemptions, it doesn’t matter what a vendor says. If you lawfully acquire a videotape or DVD, it’s not an infringement to show it in the classroom for curriculum purposes. Renting a film from a video store is also a way to lawfully acquire a DVD or videotape. That copy, too, may be shown in the classroom even though it may include a warning that states, “Home Use Only.” Some vendors charge a higher fee for videos with public performance rights. If you are only going to show the films in the classroom, there is no need to obtain public performance rights. If you plan to show the videos outside the classroom or for entertainment purposes, you should license the public performance rights.

A school administrator recently told us it was OK to make archival copies of any computer software or audiovisual works, including CDs and DVDs. Is that correct?
—Pat Jacobson, media specialist, Ontario Middle School, Ontario, OR

It is an infringement of copyright law to make a copy of protected works except under very specific circumstances. Section 117 allows one backup copy of computer software as long as the software was acquired lawfully. Section 108 allows libraries and archives to make reproductions of unpublished works. This exemption does not apply to videotapes, DVDs, CDs, or any work that is published. Section 108 also allows libraries to make replacement copies of published works that are damaged, deteriorating, lost, stolen, or obsolete. If your videotapes, DVDs, and other materials are in decent condition, this exemption does not apply. (DVDs and videotapes, of course, are not obsolete formats.) In addition, even if materials are lost, damaged, or obsolete, a library must first determine that a replacement copy cannot be purchased at a fair price. In other words, if you can purchase a replacement copy at a reasonable price, you’re obliged to buy it. In very rare situations, making a complete copy of a CD, DVD, or videotape may be lawful—if, after applying the four fair-use factors, you determine the use is a fair one.