“For digital transmissions, Section 110 trumps fair use. If a use does
not qualify for 110 protection, it cannot be a fair use.”
This may be the most harmful notion that circulates in debates over educational
use of films. It is also the most demonstrably false. During the drafting of the
TEACH Act, which modified Section 110(2) to allow digital streaming, the
Register of Copyrights prepared a report that urged Congress to include key
points about fair use in the legislative history of the statute. The Conference
Report on the TEACH Act did just that, quoting the Register’s conclusion that,
“Fair use could apply as well to instructional transmissions not covered by the
changes to section 110(2)….” Congress clearly had no intention of preempting
fair use when it enacted 110(2). On the contrary, legislative history and
subsequent analysis show Congress intended for fair use to fill in the gaps
where the specific exception may not apply.8
“If a video is marketed for educational use, it cannot be transmitted
digitally under 110(2).”
This legend expands the exception in the law far beyond its plain meaning.
The TEACH Act does not allow transmission of works “produced or marketed
primarily for performance or display as part of mediated instructional activities
transmitted via digital networks.” Many works are produced or marketed to
some extent for educational use in some contexts. Productions of Shakespeare’s
plays filmed by the BBC, for example, are commonly sold to high schools and
colleges for showing in literature classes. But to be excluded from the 110(2)
educational provision, a work must be produced or marketed primarily for
digital distance education. The vast majority of feature films simply do not
have such a targeted audience. If the work is marketed primarily for commercial
audiences, or for face-to-face educational use, repurposing it for digital distance
education is precisely what 110(2) is meant to allow.
Conclusion
Copyright law can be confusing, but the proliferation of misinformation and
misstatements about copyright has made rational discussion considerably more
difficult, not to mention chilling beneficial behavior. Hopefully bringing some
popular misconceptions to light will help clear the way for a calmer, more
reasonable discussion of these issues.
RLI 270
19
Urban Copyright Legends
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C O N T I N U E D
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JUNE 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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