BY:Steven C. Beer, Jake Levy and Neil J. Rosini
This Q&A was originally published in the Spring 2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Under US copyright law, educational institutions usually need a public performance license (PPL) from the owner of copyright or its representative in order to show a film to students. This rule applies whether the school is using a physical copy, a download or a transmission (including streams); whether any admission fee is charged; whether the institution is for-profit or nonprofit; and whether the purpose is entertainment or education. The effect of this requirement is to preserve for filmmakers a channel of distribution to schools that is distinct from distribution to the general public.
Commercial sales to the general public of DVDs, streams and downloads do not include a PPL. Instead, their exhibition is legally restricted to private showings on home screens and personal mobile devices, rather than public performances. To perform a film “publicly” includes showing it in any place “where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”— i.e., beyond family and friends. Legally showing a film non-theatrically in a pediatrician’s office, a public library, a museum, a restaurant and in many educational contexts requires a PPL, which Best Buy, Amazon and Netflix are unable to supply.
The primary exception to this rule is found in Section 110(1) of the US Copyright Act. It allows for performing a lawfully made copy of a film “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.” School libraries, auditoriums and gyms are eligible, in addition to classrooms, as long as instruction takes place there. But this exception doesn’t apply to profit-making institutions, screenings for entertainment purposes, transmissions originating from outside classrooms, activities that aren’t instructional (such as a graduation ceremony or basketball game) or to locations that are not devoted to instruction. Also, because this exception requires “face-to-face” teaching in a place devoted to instruction, it doesn’t cover viewings by students in their dorm rooms, study carrels, the south quad lawn, a coffee shop, and virtually every other place they are apt to watch a film for a class outside a classroom.
For teachers who prefer not to use up precious class time watching films in tandem with their students, this exception is not very useful. Fair use is not likely to be helpful, either; it generally won’t defend public performances by schools—even for educational purposes—because it rarely applies to viewing an entire copyrighted work. In sum, a school that publicly performs entire films without a PPL in any way that doesn’t fit the face-to-face teaching exception is risking copyright infringement.
Theoretically, a student could legally access an available educational film by buying a commercial DVD or subscribing to a streaming service and watching the film privately. But many course-worthy films are not available to the general public and in any event, schools don’t want to require students to buy copies or pay for streaming services. Instead, schools generally prefer to arrange to furnish streams to students and faculty by acquiring a PPL. For a school to host and stream films from its own password-protected server to students and faculty, it needs a particular type of PPL called a digital site license. Otherwise, the school could acquire access for its students and faculty to streams hosted on an authorized third-party server.
Also theoretically, PPLs could be granted to schools directly by a film’s copyright owner, but that’s a rarity. As is already noted, it generally doesn’t make economic sense for filmmakers to market to schools themselves. Instead, filmmakers with films that interest educators usually convey the right to grant PPLs to educational film distributors, and they in turn offer PPLs in those films to the educational marketplace.