Question? If copyright allows you to check out and view library-owned films in your physical classroom, you can ask the Libraries to digitize the entire film for you to post to Blackboard so your distance education students can view it, right?
Answer. It depends. Please review everything below to familiarize yourself with all aspects that must be considered. Be aware that a decision by the Libraries to digitize a film in its collection for course streaming purposes will only come after a thorough review, which can take time. If a decision to digitize a film is made, the process of converting it to a streaming file available for course use (including producing captioning if necessary, per University policy) can also take considerable time. Digitizing a film should therefore be considered a last resort solution for course viewing purposes.
Copyright Considerations:
- Fair Use. Fair use is a defense to copyright infringement. It allows certain uses of copyrighted material without permission from the copyright owner. A fair use determination has to be on a case-by-case basis by weighing and balancing four factors. It is fact specific and often quite subjective, so it is not always clear whether a particular use is fair.
- One factor in a fair use analysis is the impact on the market for the work. Circumventing the market leans more heavily against fair use. Hence, whenever a film is available for rental or purchase on a streaming platform, or digital streaming rights for a disc can be licensed so it can legally be converted to a streaming file, it could be more difficult to assert fair use as a justification for ripping/making a copy. Therefore, the first recourse must be to verify whether the Libraries can license the film online or whether students can use a personal streaming service.
- Another factor is the amount and substantiality of the portion used in relation to the whole copyrighted work. There are no bright lines, but using more of the copyrighted work than is necessary to accomplish your pedagogical purpose will weigh against fair use. In certain circumstances, digitizing an entire film may qualify as fair use; in other circumstances, it may not.
- The Libraries owning a DVD or VHS copy does not change this assessment.
- The TEACH Act. If films are used for distance education, the TEACH Act may also apply. Under the TEACH Act, digitization of a film can only take place when a digital version is unavailable or protected by technological measures and certain additional criteria are met, including
- The performance is made by or under the supervision of an instructor.
- The performance is directly related and integral to the class content, not ancillary like optional viewings.
- The film is part of systematic mediated instructional activities.
- A reasonable and limited portion of the film is digitized and transmitted (i.e. no more than is necessary to accomplish your pedagogical purpose, and always less than the whole film).
- The transmission is made solely for and limited to students officially enrolled in the course.
- The digital version is made from a lawfully made and acquired analog.
- Reasonable technological controls must be used to prevent copying, retention, and further dissemination of the film.
- The work must carry a warning notice to students. The Libraries use the following text: "This performance is copyrighted material permitted for use under the TEACH Act. Viewing is restricted to students enrolled in this course. This material is not to be retained or further distributed."
- Streaming copyrighted material through campus networks could also run afoul of the University's IT Use Policy.
Can the Libraries digitize an entire film?
1. At a minimum, four considerations must be met:
- A physical copy is in the Libraries' collection. The Libraries will not digitize personal copies.
- The Libraries cannot license a streaming version from a commercial entity (e.g. SWANK).
- The Libraries cannot license digital streaming rights for a physical copy, which would allow the Libraries to legally convert it to a streaming file, and then upload it to a secure streaming server.
- The film is not commercially available via personal streaming services available to students (e.g. Netflix).
2. If all four criteria in 1) apply, instructors must also submit a Fair Use evaluation form to the Libraries that
- Includes a rationale for why using the entire film is critical to the learning goals of the course (instructors should only request as much of the film as necessary to meet documented learning goals; clips should be used whenever possible).
- The Libraries retains the right to decline a digitization request if the Fair Use justification is deemed insufficient. If that happens, the Libraries will contact the instructor to discuss the situation further.
3. If the criteria in 1) has been met, and the Fair Use justification is deemed sufficient by the Libraries, the Libraries will proceed with digitization.
Therefore, only if
1. A physical copy is already in the Libraries' collection
2. No streaming version is available on the market,
3. No digital streaming rights can be licensed for converting a DVD to a streaming format, and
4. A sufficient Fair Use analysis has been conducted
will the Libraries digitize one of its films to stream to a distance education course.
Can the Libraries digitize clips?
Yes. The libraries can digitize a “reasonable” portion of a film.
- Instructors must submit a Fair Use evaluation form to the Libraries that includes a rationale for use of the clip (even if the TEACH Act doesn't apply).
- A physical copy needs to be in the Libraries’ collection.
Teach Act Requirements:
The TEACH Act (2002) permits streaming portions of film content. More specifically, the TEACH Act (included in Section 110(2)) of the Copyright Act - The "Technology, Education and Copyright Harmonization" Act allows instructors to perform or display copyrighted works in distance education environments. Per the TEACH Act, additional requirements must be met in order to digitize and legally stream video for course purposes.
1. A digital version of the film is either unavailable or protected by technological measures.
2. The portion of the film that is streamed must be reasonable and limited.
3. Streaming must be controlled so the file is not widely distributed or downloadable.
- Once a film in the Libraries' collections is digitized (all above criteria must be met), the streaming file will be loaded by Libraries' staff into Kaltura
- Access will then be provided to the instructor by the Libraries using Kaltura's "collaboration" feature.
- The instructor can then embed a link to the streaming file in Blackboard using its Kaltura Mashup function.
- This ensures no file transfer (or download) takes place, either to instructors or students.
4. Access will only be provided to students enrolled in the course.
- Access will be promptly removed for any student who withdraws from the course (Blackboard manages this).
- Access will be promptly removed for the entire class upon the course's conclusion. (Blackboard manages this).
- The streaming file will be removed from Kaltura and upon conclusion of the course.
5. The streaming file will carry a warning that copyrighted material is being distributed as permitted under the TEACH Act. When the Libraries digitizes a film for course purposes, the following statement will be added to the beginning of the file.
- "This performance is copyrighted material permitted for use under the TEACH Act. Viewing is restricted to students enrolled in this course. This material is not to be retained or further distributed.
Accessibility:
Per the University's Information and Communication Technology Accessibility Policy, captioning must be provided for online instructional content produced by the University. This introduces additional steps into producing a streaming film for course use.
- All films digitized by the Libraries will be sent for captioning by the University's contracted vendor (1 to 2 weeks turnaround minimum). Only if original captioning on the physical version is entirely maintained during conversion to a streaming file can this step by omitted.
- Upon return the caption file and media file will be uploaded into Kaltura.
- No digitized film will be uploaded by the Libraries into Kaltura until captioning is available.
- Caption files will be retained by the Libraries.
Take down notices or complaints from a film's rights holder
If the instructor, Libraries, or the University is contacted by the film's rights holder at any point during the semester with a complaint when rights or permission to digitize and stream a film have not been secured, Libraries and University Counsel will review the complaint and determine next steps. Libraries or University Counsel will also notify the instructor. If the request comes to the instructor, the instructor must promptly notify the Libraries who will then notify University Counsel.
