Can I do it Legally?
"The more a faculty member does to add new commentary, value, meaning, and messages to the screening, the greater the transformative use." -- Kyle K. Courtney
Broadcasting/Streaming a DVD in an educational Zoom session offers both technological and copyright issues. Aside from internet connectivity problems, the technological issues can be relatively easily overcome. The overarching issue concerns the legality of broadcasting a commercial DVD in the first place. Is it legal? By what restrictions must an instructor need to abide in order to do so legally? How does the concept of educational "fair use" and the TEACH act - and the fact that we are in the middle of a pandemic lock-down - figure into all of this?
As with many things involving the educational use of copyrighted material, the answers are usually not straight forward and vary with the circumstance and even with who you ask. Below is a survey of the stated policies of random institutions of higher learning specifically concerning the copyright implications of broadcasting (to a registered class of students) a DVD in a Zoom class session.
Basically the question is: can one broadcast a DVD over Zoom legally in the context of a class session? Some institutions say "it all depends" and then give criteria for how to make it happen. Some institutions seem to ignore any copyright issues and only address technological issues. At least one institution indicates that streaming a commercial DVD over Zoom is forbidden. I have listed the three perceptions below in each of three BOXES.
The one common variable among almost all of these institutions is their reference to the concepts of the "fair use" section of copyright law and the newer part of copyright law section 110(02) known as the TEACH act. All of the institutions refer to these sections upon the advice of Harvard Librarian/Lawyer Kyle K. Courtney (copyright advisor to Harvard University) as posted in a series of three blog posts entitled "COVID-19, Copyright and Library Superpowers." The third post was the most pertinent: “Zoom, Zoom, Zoom: Copyright and Face-to-Face TEACH-ing in a COVID-19 World.”
"Keep calm, and “fair use on” in a thoughtful and educated way." --- Kyle K. Courtney
THE FOUR FACTORS to Consider
Purpose Nature Amount Market
"Each fair use scenario is different – whether DVD clips, streaming, synchronous “zoomed” screening – so you must apply the factors, weigh the risk, and act in good faith.
COVID-19 crisis or not, always apply fair use prudently and manage risk sensibly." - Kyle Courtney
For ease of use and convenience I have provided the exact text concerning Courtney's explanation of these four factors (as taken directly from Kyle Courtney's article “Zoom, Zoom, Zoom: Copyright and Face-to-Face TEACH-ing in a COVID-19 World.”) below. These explanations come near the end of Courtney's article and have been copied directly from his article. As Courtney indicates, he counts down listing the factors of fair use "in reverse" order of the relative amount of legal weight/significance:
Factor Four: Market
One factor that can matter a lot for fair use is the effect of your use on the market for the work. If your use simply replaces what would normally be a purchase or license, you will have a harder time arguing for fair use. That’s why we recommend a “market check” if you want to screen an entire film or films for your class. If the titles you need are readily available on affordable commercial services (Amazon Prime, Hulu, Netflix, etc.) or on library platforms like Swank or Kanopy, obtaining access through those channels might make more sense than streaming with Zoom. Many movies are currently free(!) through various video vendors (see this list): Vendor COVID-19 Related Donations and Pro Bono Access (aka Vendor Love in the Time of COVID-19)
And, even though fewer and fewer films are available on DVD, Blu-Ray, or VHS (!), they certainly are easier to physically purchase, and your library may already hold them in its physical collections (which may or may not be accessible during this crisis…). With physical media in hand, you could make a fair use of various clips and scenes for your non-profit educational use. However, when these films are only available through a streaming service, you face new legal questions, because you access streaming films subject to a restrictive license. We discuss the trouble with licenses in more depth below.
Factor Three: Amount
The next factor, the amount and substantiality of your use, is closely related to purpose and market harm. Both the amount of the film you screen and the extent of the access you provide should be appropriate in light of your educational purpose.
In some cases, showing portions of a movie may be more appropriate than showing entire films. Clips should be limited in length as appropriate in light of the pedagogical goal. If the class is only analyzing particular scenes, shots, or dialog, limit showing the film to only the appropriate clips.
In almost every case, ensuring the screening is only accessible to enrolled students will be crucial. Using an LMS system that is protected by authentication (Blackboard, Canvas, and other LMS systems) certainly helps to “mimic the classroom” access via technology. Limiting Zoom attendance to enrolled students will have the same effect. The duration of access should also be limited to what’s appropriate for the teaching goal, and a synchronous “screening” via Zoom would ensure that access is limited to the duration of the session. And, additionally, the technology in Zoom can prevent anyone from recording these films – the host merely has to switch the record option “off.” In short, take only what is appropriate for your teaching goals, for only the amount of time that is appropriate.
Factor Two: Nature
While the law is more protective of works that are more creative (or unpublished works) many courts have recently de-emphasized this factor’s impact. Some courts, doing a modern fair use analysis, have called this a “neutral” factor. As you can imagine, many classes that use media and film draw upon a wide breadth and scope of creativity, from factual documentaries to science fiction and fantasy. Any use of a film could be appropriate, but be sure to balance out all the other factors.
Factor One: Purpose
The last factor we will consider is factor one – the nature and the purpose of the use. Ask: What is the purpose in screening the film? Fair use will be more friendly to screenings that are closely tied to the course’s overall learning objectives. Is the film listed in the syllabus? If asked, could you clearly explain the pedagogical purpose of screening the film? Fair use favors educational use, but to argue your use is educational, you will need to tie the screening closely to the course’s learning goals.
Transformativeness is another important factor in many fair use scenarios. If your use is for a new purpose, different from the original commercial or expressive purpose of the film, your use could be considered transformative. Few feature films are made to be studied in an academic setting, of course, so many educational screenings of a film are arguably transformative. But the more orthogonal the screening is to the film’s original purpose, the easier it is to argue the use is transformative. Advertisements and breaking news coverage, for example, have a very limited commercial and expressive purpose, such that screening and critiquing these works in a (virtual) classroom context is easy to characterize as novel and transformative. Screening a dramatic film intended to provoke complex thought, where the learning experience consists primarily in unpacking the meanings and messages in the film, may be more difficult to characterize as transformative.
Relatedly, the more a faculty member does to add new commentary, value, meaning, and messages to the screening, the greater the transformative use. So far, we’ve been assuming that your screening is fairly straightforward—the instructor might briefly introduce the film, but then she plays the film uninterrupted for its duration. However, a screening that is punctuated with numerous interventions by the instructor would be much more transformative, and therefore much more likely to pass fair use muster. The instructor would be changing the viewing experience substantially, adding meaning and messages of her own, throughout the experience. Arguably, the experience could also be transformed by an instructor’s interventions before or after the screening, as well. <bold & color emphasis added>
Each fair use scenario is different – whether DVD clips, streaming, synchronous “zoomed” screening – so you must apply the factors, weigh the risk, and act in good faith. COVID-19 crisis or not, always apply fair use prudently and manage risk sensibly.