Requests for audio and video recordings and photographic images
For this, we'll consider excerpts from six commercially recorded musical works, a set of architectural slides and a commercial video showing a musical performance.
In addition to the exclusive right to make copies, copyright owners also have the exclusive rights to publicly perform and display their works. As with all the exclusive rights, however, these rights are limited. We will address other limitations in addition to fair use that may protect public performances and displays in the library.
Making a master recording
The audio reserve request probably will involve combining parts of the six works into a single sound recording. The fair use analysis for copying six musical excerpts is exactly like the analysis for copying six articles. In this case, however, the second factor, the nature of the copyrighted work, will probably weigh against fair use because the work is creative rather than factual. Still, with the first factor in favor of fair use, an amount that is appropriate in light of the intended use, and the favorable effect those two have on consideration of the fourth factors, even though this is a harder case than a text example, it seems reasonable to expect that it would be fair. As with the e-reserves examples, if the recording is digital then access will need to be restricted and streaming should be used whenever possible (rather than having students download the files).
Using photographs in a book
The request to use photographs from a book is similar to the request to make a master recording. Again, the second factor weighs against a finding of fair use since photographic works are not factually based like journal articles. But, given an educational use and a modest request (a small number of images to be copied from any one book), this request still should qualify as a fair use.
Providing access to slides/images
This kind of request seems more troubling than using photographs from a book for several reasons. Slides are usually images of creative rather than factual works, making the second factor weigh against fair use (as discussed above). Further, a slide is likely to be considered a whole work, not part of something, thus making the third factor weigh against fair use as well. When two out of the first three factors weigh against fair use, the fourth factor can become problematic because its weight can depend upon whether the use is otherwise fair. Even in the nonprofit context, once the second and third factors weigh against a finding of fair use, one must seriously consider the possibility that a court would weigh the fourth factor against a finding of fair use as well. The less clearly fair the use is by the time the court considers the fourth factor, the more likely the court is to take the publisher's "lost revenues" into consideration. As most libraries are aware, slide/image providers often have policies against duplication and likely have options for educational licensing. Note, however, that if the original slides/images are no longer available or permission to copy them cannot easily be obtained, the fourth factor tips towards fair use.
Making a copy of an entire video
This copying request is difficult for the same reasons as discussed above in duplicating slides. As well as being an entire work, it is a creative work and so the second and third factors weigh against a finding of fair use. That would bring the fourth factor into question, making reliance upon fair use risky, were it not for the fact that permission to make a copy of a movie for nonprofit educational use can be difficult to obtain. Note, that many films are now available via library license or a streaming service. When those options exist, it's safer to use them than to rely on fair use. When educational use licenses are nonexistent and the video isn't available via streaming services, we have a reasonable, if not an overwhelming fair use argument, especially if we are careful to institute limits on the use of the copied video.
Sony, supports this result, as it would be difficult to argue that educators are not permitted under fair use to copy an entire program when individuals have the right to do so purely for entertainment purposes (1). But, the differences in context make it very hard to "apply" Sony to this circumstance; the programs copied in Sony were free broadcasts, not commercially purchased videos. As you might have come to expect by now, it is not at all clear exactly how a court would decide this issue.
Performing the copyrighted work
When considering showing a musical performance, the right to make a copy is only one of the rights we need. The copyright owner has the exclusive right to publicly perform his work, so we must get their permission unless an exemption covers what we want to do. First we ask, is the performance public? Section 101 of the copyright law says that a performance is public if it is:
One must consider whether the place is public and the size and composition of the audience. For example, if the performance takes place somewhere open to the public, how many and what kind of people attending is not important. By definition it is a public performance. If the public can be excluded, the size and composition of the audience determine the result (2).
Most university libraries may not be open to the public, but they are open to considerably more people than a normal circle of a family and its acquaintances. Thus, the displays and performances that take place in the libraries are public performances.
Even if a performance is a public performance, it still may not be an infringement because the copyright law places limits upon the performance right of copyright owners in Sections 110(1) and (2). Section 110(1) says that public performances that take place in the face-to-face teaching activities of a nonprofit educational institution are not an infringement.
The legislative history of Section(s) 110(1) and (2 - for distance education) indicates that the legislators thought these two exemptions would cover all performances and displays necessary to teach in public institutions. They specifically include libraries as examples of classrooms or areas devoted to systematic instructional activity. Section 110(1) covers live and recorded performances; the teacher does not have to be in the same room as the students, only in the same general area. Thus, since our audio selections, slides/images and recorded music performance would all qualify under these descriptions for the face-to-face classroom exemption, they can be displayed and performed (watched and listened to) in the library without permission.
In addition, fair use applies to all of the exclusive rights of copyright owners, not just to making copies, so a performance may also be a fair use depending upon the results of weighing the four fair use factors, just as described above for analyzing making copies of copyrighted works. Further, it seems likely that if making a copy of a recording in a particular instance is a fair use, exercising performance rights needed to utilize the copy should also be a fair use. Similarly, if the right to perform or display is covered by Section 110(1), the right to make a copy required for that permitted display or performance should be a fair use.
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