Eyes on the Prize: Performance and Copyright

Pete wrote about what's been happening with Eyes on the Screen. And while I agree with him on all a lot of this and am incredulous by the actions of the license holders, fair use's application to movies is still very shaky, and does not really cover the "performance" of an audiovisual work, esp. As I've discovered by reading the report on rights clearing culture, filmmakers and documentarians do make claims of fair use in their pictures, but usually not publicly or too loudly.

Here's why:

Section 110, Title 17, Chapter 1:

"Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;"
So, the problem here is there's no way to get a lawfully made copy. The people responsible for the performance are probably unsure at best about the legality.

House Report No. 94–1476 elucidates some of this language:

"Face-to-Face Teaching Activities. Clause (1) of section 110 is generally intended to set out the conditions under which performances or displays, in the course of instructional activities other than educational broadcasting, are to be exempted from copyright control. The clause covers all types of copyrighted works, and exempts their performance or display “by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution,” where the activities take place “in a classroom or similar place devoted to instruction.”
There appears to be no need for a statutory definition of “face-to-face” teaching activities to clarify the scope of the provision. “Face-to-face teaching activities” under clause (1) embrace instructional perform­ances and displays that are not “transmitted.” The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase “in the course of face-to-face teaching activities” is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit. However, as long as the instructor and pupils are in the same building or general area, the exemption would extend to the use of devices for amplifying or reproducing sound and for projecting visual images. The “teaching activities” exempted by the clause encompass systematic instruction of a very wide variety of subjects, but they do not include performances or displays, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience."

Works Affected.—Since there is no limitation on the types of works covered by the exemption, teachers or students would be free to perform or display anything in class as long as the other conditions of the clause are met. They could read aloud from copyrighted text material, act out a drama, play or sing a musical work, perform a motion picture or filmstrip, or display text or pictorial material to the class by means of a projector. However, nothing in this provision is intended to sanction the unauthorized reproduction of copies or phonorecords for the purpose of classroom performance or display, and the clause contains a special exception dealing with performances from unlawfully made copies of motion pictures and other audiovisual works, to be discussed below.

Instructors or Pupils.—To come within clause (1), the performance or display must be “by instructors or pupils,” thus ruling out performances by actors, singers, or instrumentalists brought in from outside the school to put on a program. However, the term “instructors” would be broad enough to include guest lecturers if their instructional activities remain confined to classroom situations. In general, the term “pupils” refers to the enrolled members of a class.

Nonprofit Educational Institution.—Clause (1) makes clear that it applies only to the teaching activities “of a nonprofit educational institution,” thus excluding from the exemption performances or displays in profit-making institutions such as dance studios and language schools.

Classroom or Similar Place.—The teaching activities exempted by the clause must take place “in a classroom or similar place devoted to instruction.” For example, performances in an auditorium or stadium during a school assembly, graduation ceremony, class play, or sporting event, where the audience is not confined to the members of a particular class, would fall outside the scope of clause (1), although in some cases they might be exempted by clause (4) of section 110. The “similar place” referred to in clause (1) is a place which is “devoted to instruction” in the same way a classroom is; common examples would include a studio, a workshop, a gymnasium, a training field, a library, the stage of an auditorium, or the auditorium itself, if it is actually used as a classroom for systematic instructional activities.

Motion Pictures and Other Audiovisual Works.—The final provision of clause (1) deals with the special problem of performances from unlawfully-made copies of motion pictures and other audiovisual works. The exemption is lost where the copy being used for a classroom performance was “not lawfully made under this title” and the person responsible for the performance knew or had reason to suspect as much. This special exception to the exemption would not apply to performances from lawfully-made copies, even if the copies were acquired from someone who had stolen or converted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110 (1) in such cases, the copyright owner might have a cause of action against the unauthorized distributor under section 106 (3), or against the person responsible for the performance, for breach of contract. [...]

Content of Transmission.—Subclause (B) requires that the performance or display be directly related and of material assistance to the teaching content of the transmission.

Intended Recipients.—Subclause (C) requires that the transmission is made primarily for:
(i) Reception in classrooms or similar places normally devoted to instruction, or
(ii) Reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
(iii) Reception by officers or employees of governmental bodies as a part of their official duties or employment.
In all three cases, the instructional transmission need only be made “primarily” rather than “solely” to the specified recipients to be exempt. Thus, the transmission could still be exempt even though it is capable of reception by the public at large. Conversely, it would not be regarded as made “primarily” for one of the required groups of recipients if the principal purpose behind the transmission is reception by the public at large, even if it is cast in the form of instruction and is also received in classrooms. Factors to consider in determining the “primary” purpose of a program would include its subject matter, content, and the time of its transmission.

Paragraph (i) of subclause (C) generally covers what are known as “in-school” broadcasts, whether open- or closed-circuit. The reference to “classrooms or similar places” here is intended to have the same meaning as that of the phrase as used in section 110 (1). The exemption in paragraph (ii) is intended to exempt transmissions providing systematic instruction to individuals who cannot be reached in classrooms because of “their disabilities or other special circumstances.” Accordingly, the exemption is confined to instructional broadcasting that is an adjunct to the actual classwork of nonprofit schools or is primarily for people who cannot be brought together in classrooms such as preschool children, displaced workers, illiterates, and shut-ins."

[...Further,]

The majority of the Supreme Court in the Aiken case based its decision on a narrow construction of the word “perform” in the 1909 statute. This basis for the decision is completely overturned by the present bill and its broad definition of “perform” in section 101. The Committee has adopted the language of section 110 (5) with an amendment expressly denying the exemption in situations where “the performance or display is further transmitted beyond the place where the receiving apparatus is located”; in doing so, it accepts the traditional, pre-Aiken, interpretation of the Jewell-LaSalle decision, under which public communication by means other than a home receiving set, or further transmission of a broadcast to the public, is considered an infringing act."

In H.R. 2215 (2002), Section 13301:

"Subtitle C: Educational Use Copyright Exemption - Technology, Education, and Copyright Harmonization Act of 2002 - (Sec. 13301) Revises Federal copyright law to extend the exemption from infringement liability for instructional broadcasting to digital distance learning or distance education. Excludes from such exemption (thus subjecting to infringement liability) any work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired and the transmitting government body or accredited nonprofit educational institution knew or had reasons to believe was not lawfully made and acquired. Allows under specified conditions the performance and display of reasonable and limited portions of any copyrighted work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission.

Revises the conditions of such transmission to: (1) require the performance or display to be made by or at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit education institution; (2) limit its reception to students officially enrolled in the course for which it is made or officers or employees of governmental bodies as a part of their official duties or employment; and (3) require the transmitting body or institution to take specified actions to promote faculty, student, and staff compliance with copyright law. Requires the transmitting body or institution also, in the case of digital transmission, to: (1) apply technological measures that reasonably prevent retention of the work in accessible form by transmission recipients for longer than the class session, and any unauthorized further dissemination of the work in accessible form by such recipients to others; and (2) refrain from engaging in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.

Exempts governmental bodies and accredited nonprofit educational institutions from liability for infringement by reason of the transient or temporary storage of material carried out through the automatic technical process of a digital transmission of the performance or display of that material.

Extends the current ephemeral recording exemption, under specified conditions, to copies or phonorecords embodying a performance or display in digital and analog form for use in making transmissions authorized by this Act.

Declares that this Act does not authorize the conversion of print or other analog versions of works into digital formats, except that such conversion is permitted only with respect to the amount of such works authorized to be performed or displayed if: (1) no digital version of the work is available to the institution; or (2) such version is subject to technological protection measures that prevent its use.

Requires the Undersecretary of Commerce for Intellectual Property to report to specified congressional committees on technological protection systems that have been implemented, are available for implementation, or are proposed to be developed to protect digitized copyrighted works and prevent infringement, including upgradeable and self-repairing systems, and systems that have been developed, are being developed, or are proposed to be developed in private voluntary industry-led entities through an open broad based consensus process."

Now, let's look at the sections of US Code, Title 17:

Section 106: "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

That's the basic one, Section 106, which is then modified by Sections 107-122. Parts 1 and 3-5 are relevant here.

Section 107 covers fair use. It states:

"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

The four factors for fair use are outlined. Factor #1 is probably the most compelling factor given that it is for a school, most of which are either supported by local government or non-profit. Factor #2-- I'm not sure what nature means. Seems like in the case of papers, books, and unpublished materials; the nature argument is more compelling. Documentary films seem to be on more of a sure footing, one would think. Materials consumed for purely/mostly entertainment value would probably be the least likely to meet this factor. Factor #3--Amount: Playing the whole thing. #4--Effect on market: None at the present time, but do any of you get the sense that this scarcity and demand is going to push this video back into the market? I do. The more people ask for something, the more likely it is to commercially redistributed.

That house report also takes note of the following:

"Reproduction and Uses for Other Purposes. The concentrated attention given the fair use provision in the context of classroom teaching activities should not obscure its application in other areas. It must be emphasized again that the same general standards of fair use are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will differ from case to case."

[and...]

"The fair use doctrine would be relevant to the use of excerpts from copyrighted works in educational broadcasting activities not exempted under section 110 (2) or 112, and not covered by the licensing provisions of section 118. In these cases the factors to be weighed in applying the criteria of this section would include whether the performers, producers, directors, and others responsible for the broadcast were paid, the size and nature of the audience, the size and number of excerpts taken and, in the case of recordings made for broadcast, the number of copies reproduced and the extent of their reuse or exchange. The availability of the fair use doctrine to educational broadcasters would be narrowly circumscribed in the case of motion pictures and other audiovisual works, but under appropriate circumstances it could apply to the nonsequential showing of an individual still or slide, or to the performance of a short excerpt from a motion picture for criticism or comment."

[and...]

"The problem of off-the-air taping for nonprofit classroom use of copyrighted audiovisual works incorporated in radio and television broadcasts has proved to be difficult to resolve. The Committee believes that the fair use doctrine has some limited application in this area, but it appears that the development of detailed guidelines will require a more thorough exploration than has so far been possible of the needs and problems of a number of different interests affected, and of the various legal problems presented. Nothing in section 107 or elsewhere in the bill is intended to change or prejudge the law on the point. On the other hand, the Committee is sensitive to the importance of the problem, and urges the representatives of the various interests, if possible under the leadership of the Register of Copyrights, to continue their discussions actively and in a constructive spirit. If it would be helpful to a solution, the Committee is receptive to undertaking further consideration of the problem in a future Congress."

What is a performance? Section 101 tells us the US Code definition.

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

I'll have to take a trip to the library tomorrow to find out what Black's or West Law Dictionaries say. Luckily, you can't copyright government publications, so I can quote US Code till I'm blue in the face. Which I will be soon if I don't stop. Till tomorrow...

[Please no one take any of what I say as justification to do anything for which you should probably consult someone professionally licensed in these matters. I just want to go through the relevant sections relating to copyright, and get everyone's opinion. Maybe we can go over this section by section if people are interested.]