indeed, that is exactly what the law intends to empower her to do, to use
materials in class without having to seek out special rights or editions. Staging a
film festival or showing a movie for a student club may require special licenses,
but teaching uses are clearly exempt from performance rights requirements.
Although the Copyright Act unambiguously absolves teachers (and, by
extension, libraries) from paying special performance fees for classroom uses,
any librarian who acquires audiovisual
materials can tell you that vendors present
them with a dizzying variety of “rights”
and tiered pricing schemes based on the
opposite notion: that libraries and schools
are required by law to shoulder costs not
required of normal users. Laura Jenemann
has assembled a nice group of examples in
a recent paper on the subject.18 Jenemann documents misrepresentations by
major educational film distributors, including Women Make Movies,19 Direct
Cinema Limited,20 and Bullfrog Films.21 Each of these distributors uses “public
performance rights” to partially justify price discrimination, i.e., charging
different prices to different users for the same content. Vendors suggest that
libraries are getting something more for their inflated price; indeed, they tell
libraries that to make the classroom uses that their teachers need, the more
expensive product is required. In reality educational users simply do not need
these rights for classroom uses. Libraries may consider buying these rights for
other uses, but vendors who claim licenses are required for classroom teaching
are not making it easy for librarians to determine which license is right for them.
Vendors are entitled to set whatever prices they like for their products.
Vendors who sell unique products exclusively to institutional customers often
charge higher prices across the board compared to retailers that sell mass-market
goods to the public. Sellers are even free to charge different types of users
different fees for exactly the same product. Software vendors do this when they
charge students lower prices than standard or commercial users. They can use
license agreements to enforce these pricing schemes by having buyers represent
in a contract that they will not use the product in circumstances that exceed the
license, e.g., that a “home use” copy will not be shown in a classroom. Although
similar licenses have come under criticism from legal scholars for creating
unnecessary limitations on legitimate uses, courts have typically enforced them.
RLI 276
25
Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims
(
C O N T I N U E D
)
SEPTEMBER 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC
Libraries may consider buying these rights for
other uses, but vendors who claim licenses are
required for classroom teaching are not
making it easy for librarians to determine
which license is right for them.
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