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Fair use offers an extraordinarily important opportunity for faculty to make reasonable and limited uses of copyrighted materials. Clipping, cutting, pasting, uploading, posting, and many other activities that are common at the university may be copyright infringements or may be within fair use. When do you need to think about fair use? Some example situations:

• Uploading materials to CourseWorks or another server.
• Clipping and copying materials into innovative teaching tools.
• Posting materials for distance learning.
• Developing databases of copyrighted works for research.
• Sharing articles and other materials with colleagues.
• Developing digital libraries.
• Placing copies on library reserves.

A fair use analysis is necessary to determine if your use is a fair one. A full discussion of the four factors under fair use and the use of the Fair Use Checklist is found under the Copyright Basics Tab of this site.

Showing or “performing” a motion picture at the university can be important for teaching and other university activities, but the performance must be made in compliance with copyright law. One of the rights of the copyright owner in the film is the right to make a “public performance” of it. Therefore, the performance of a copyrighted film must be made only with permission from the copyright owner or consistent with one of the exceptions or limitations in the copyright law.

As outlined below, the law does provide many opportunities for showing films at the university, but one usually must begin with the following assumptions:

• Most audiovisual works used at the university are in fact protected by copyright. Copyright protection lasts for many decades, and usually only some of the earliest motion pictures are in the public domain.
• Many performances of copyrighted works are “public” and therefore may be a violation of the copyright owner’s rights. A performance can be “public” if it is 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 are gathered. As a result, a “public performance” can take place in a classroom, a dormitory lounge, or a campus theater or auditorium.

Nevertheless, copyright law includes several possibilities for properly showing copyrighted audiovisual works. [Note: This document is only about the “performance” of the work. Making a copy of all or part of the work must be addressed separately.]

Allowed: Performing a work privately, and not publicly


A performance may not be “public” if the place is closed to the public, and the audience is not a “substantial” number of persons. Therefore:

• The smaller the viewing group, the less likely it will be a public performance.
• Gathering a large group of friends or using a common room in a residence hall can make the performance “public."
• Open invitations and announcements to the public can make a performance “public.”

Allowed: Performing a work in the course of teaching activities of a nonprofit educational institution

Copyright law includes a code section specifically permitting performances of works by nonprofit educational institutions. A performance may fit within the exception if:

• The performance is in a classroom or similar location for instruction (Note: this exception applies only in the face-to-face setting and not to a broadcast, transmission, or online display).
• The performance is part of a teaching activity, although it does not have to be part of a regular course. Therefore, an instructor may host a related discussion forum or arrange for a student or instructor to lead an educational program related to the film.

These rules are specified in Section 110(1) of the U.S. Copyright Act, but a separate statute provides for performing a work through any “transmission” to students, such as through distance education or from a university server. That statute, known as the “TEACH Act” and codified at Section 110(2) of the U.S. Copyright Act, may be used only by complying with numerous conditions and requirements. Consult Copyright Advisory Services for additional information.


Allowed: Performing a work with permission from the copyright owner

The creator of the work is typically the copyright owner or other rightsholder. In the case of motion pictures, movie studios usually hold rights in the works they create or distribute.

• You may secure permission directly from the rightsholder. For more information about permissions, please visit Permissions.
• Some suppliers of audiovisual works offer a “public performance license” for a fee, or they sell the work to universities with a performance license. If the library has purchased the work, consult with the librarians about whether it included performance rights.
• One-time licenses may be available through companies such as Swank Motion Pictures.
• Some motion pictures may be copyrighted, but licensed for broad uses through Creative Commons.

Allowed: Performing a work that is in the public domain
 

Copyright protection does not last forever, and when the copyright has expired, the work may be used without copyright restriction. For example, any work published in the U.S. before 1923 is in the public domain and may be used freely.

• For more information about copyright duration and the public domain, please see the Resources list for duration of copyright under the Copyright Basics Tab.
• The Internet Archive and other organizations facilitate finding and using many films and other works that are in the public domain.
• Additional sources of films that are in the public domain include: Festival Films; Desert Island Films; Reel Media International; BuyOut Footage; and OpenFlix.
   

Allowed: Performing a work created by the U.S. government

Works created by the federal government are not protected by copyright and are in the public domain. However, works commissioned by the federal government may have copyright protection. Also, works produced by state, local, or foreign governments may have copyright protection. Federal government works in the public domain could include many military films and NASA space exploration footage.

Allowed: Performing a work within the limits of fair use

The law of fair use provides an exception to the exclusive rights of the copyright owner. For more information concerning the law of fair use, please see Fair Use under the Copyright Basics Tab. In most situations, fair use requires careful application and judgment calls; consequently, the other opportunities outlined above are usually preferable to undertaking an analysis of fair use.
 

Massive Open Online Courses (MOOCs) require careful attention. To date, there is little reason to conclude that certain materials used in the course of MOOC production and distribution cannot be made so fairly. At the same time, careful attention should be given to the reproduction and distribution of material, given the global and open nature of a MOOC. In conjunction with the Office of the General Counsel, Copyright Guidelines for MOOC Production have been developed for faculty engaged in MOOC production.  For this reason, faculty is encouraged strongly to seek out the assistance of Copyright Advisory Services at Columbia University. Read More...

On October 27, 2015 the Library of Congress released its final rules under section 1201 of the Digital Millenium Copyright Act (DMCA) that prescribed exceptions for audio-visual content subject to technical protection measures and how they may be adapted into MOOCs.  Stay tuned for an update to the Copyright Guidelines for MOOC Production that will take the new exception into account.