Frequently Asked Film and Video Copyright Questions

Educational Technology Services and the Moffitt Library Media Resources Center are the two primary units on the Berkeley campus responsible for media production, collection, and access.

The Moffitt Library Media Resources Center is the central campus collection of videocassette materials. Materials in the Center are acquired to support teaching, research, and study needs of Berkeley students, faculty, and staff. The collections are primarily intended for on-site use. Materials in the MRC collections are also available to UCB faculty for use in the classroom. In addition to this broad, interdisciplinary core collection of materials on videotape, MRC is the primary location for the deposit and viewing of course-reserve materials in video formats.

Educational Technology Services (ETS) is the primary unit on campus responsible for the production and transmission of video and broadcast programming, and for the provision of media hardware for classroom use. Services provided by OMS also include off-air taping of broadcast materials, as well as tape reproduction and film-to-tape transfer.

The majority of materials acquired, archived, transmitted, or projected by ETS and the Media Center are protected by copyright laws and/or commercial licenses which define and limit the permissible uses of these materials in various contexts. Because this array of laws and licenses is generally complex, and because much of the law is very loosely or unclearly defined, it is often difficult for students and faculty to determine which uses are allowed under the existing laws. The discussion below is intended to provide a general response to some of the more frequently asked questions regarding the use of video on campus, and to detail current campus practices.

1. Question: An instructor wants Educational Technology Services to videotape programs as they are aired on television during the school year for teaching purposes. Can this be done?

Answer: In 1981, a Congressional committee (the Kastenmeir Committee) developed a set of guidelines governing this kind of activity. Although these guidelines were never formally made part of the copyright law, they are widely adhered to by educational institutions. Under the guidelines, off-air copying can only be done in response to a specific request by a faculty member; it cannot be done in anticipation of need or usefulness. The Kastenmeir guidelines specify that materials recorded off-air should be used within the first ten consecutive school days which fall within the first forty-five consecutive calendar days after the date of recording. Between the end of the first ten consecutive schools days after recording and the end of the forty-five calendar day retention period, an off-air recording may be used by faculty for evaluations purposes only (i.e. to determine whether to purchase the rights to retain the material).

The University of California generally supports adherence to the Kastenmeir guidelines for off-air recording in connection with educational activities on campuses. However, in 1985 the Office of the President issued a policy statement which contains provisions for retaining materials copied off-air up to one year from the date of broadcast for evaluation purposes. Requests for extending the evaluation period must be submitted in writing before the end of the standard forty-five day retention period to the campus policy implementation officer. On the Berkeley campus, the policy officer is the Director of Educational Technology Services.

In all cases, a written request to record programming off the air must be submitted to Educational Technology Services prior to the broadcast date. Programs copied off-air by ETS in response to a specific faculty request will be retained by ETS. Copied materials will be provided for classroom showing upon request of the faculty member who submitted the original request to tape the program. ETS will make a limited number of copies of a specific program, regardless of the number of faculty requesting the item. ETS will maintain a log of recorded materials and will oversee the erasure of off-air copies which exceed the forty-five day (or one year) time limit.

As an alternative to copying materials off-air for classroom use, particularly those programs aired originally on PBS, faculty should contact the head of the Media Resources Center (643-8666) regarding the possibility of MRC's acquiring the program for the library's permanent collection.

2A. Question: Can I make off-air copies at home and use them in my course? Can I put these materials on reserve in the Media Resources Center?

Answer: Materials may be copied on home video recorders for use in the classroom insofar as the copying and use of the material adhere to the guidelines discussed above; they may not be put on reserve in the Media Center or other campus locations. At the end of the year, permission to retain the material must be secured from the copyright holder, or the tape must be erased.

2b. How many times may a program taken off-air be used in a class?

Answer: Twice per class--once during normal teaching activities and once for instructional reinforcement.

3. Question: I have purchased or rented a pre-recorded video program from a home video outlet. Can I use this in my classroom?

Answer: Under certain conditions, purchased or rented pre-recorded video programs may be used in the classroom. Section 110 (1) of the copyright law enables teachers to use (perform) such a video without a public performance license (which is normally required whenever a video is shown outside the of the home). The conditions which must be satisfied are: 1) the use must take place in a non-profit educational institution, 2) the use must occur in a classroom or similar place devoted to instruction, 3) the use must be part of a regularly scheduled course (thus ruling out extra-curricular or recreational use), 4) the use must be exclusively by the instructor and the students in the classroom, in the course of face-to-face teaching activities.

4. Question: Can I place video materials which I have rented or purchased on reserve in the Media Resources Center?

Answer: The answer to this question has a great deal to do with the current controversy regarding the legal status of library viewing facilities such as the Media Center vis a vis copyright law. The strictest interpretations of the copyright law view virtually any use of copyrighted material outside of the home as a public performance, regardless of the number of individuals who view the work at one time, or the nature of use (to perform a work is defined as showing a work in sequence and/or making its sound audible). Under this strict interpretation, use of videos in MRC and similar facilities constitutes a public performance for which a license must be acquired from the copyright holder. The majority of materials in MRC have been acquired with public performance rights which allow the showing of these videos to both groups and individuals in non-profit settings.

The practice of depositing videos purchased and/or rented by faculty for course reserve use in the Media Center falls into an extremely grey area of the law. While a great many materials purchased or rented by faculty do not come with public performance rights, the Media Center will accept these materials for use in connection with the teaching activities of a specific class, on the assumption that use of these materials constitutes a logical and necessary extension of classroom teaching. Video materials deposited on reserve for a class will be returned to the faculty at the end of the semester in which they are used. Materials which have been taken off-air without obtaining prior permission or license from the copyright holder, or prerecorded materials which have been illegally copied will not under any condition be accepted for reserve use. Again, faculty should consult the head of the Media Center to discuss the feasibility of acquiring the titles placed on reserve for the permanent MRC collection, particularly if the material is used consistently for the class.

5. Question: Can I borrow a video from the Media Center for use in a program sponsored by a student group or a residence unit, or for use in connection with similar academic projects and programs outside of the classroom?

Answer: Perhaps, if the title desired for the program has been purchased by the library with public performance rights; if there are no license conditions prohibiting such use; and if the intended use is educational and non-profit in nature. The cinema works in MRC's collection do not generally have public performance rights, and may not be borrowed for use outside the classroom. In all cases, use of MRC materials outside of formal classroom settings is up to the discretion of the head of the Media Center. Other factors which enter into the decision to loan MRC materials for non-class use include cost of the title, frequency of use, condition of material, and availability of replacement copies. Materials in MRC are never loaned for use off-campus, with the exception of residence halls; materials are never loaned to individuals or groups not affiliated with UCB.

6. Question: Can duplicate copies be made of commercially-produced videos without getting permission from the copyright owner? For example, can a duplicate be made of a video which has gone out of print, is difficult to obtain on the commercial market, or is in danger of physical disintegration?

Answer: Generally, the right to duplicate video materials, including the right to make transfers from one format to another, must be secured from the copyright holder. Educational Technology Services will not duplicate materials for which permission to copy has not been obtained; the Media Resources Center will not accept such material for reserve viewing.

7. Question: Can I have Educational Technology Services extract excerpts from a longer work for use in the classroom?

Answer: Under certain conditions, use of extracted material is permissible under the fair use provisions of the copyright law. Some of the considerations in applying fair use include the length of the excerpt; the purpose of the use (i.e. educational vs commercial or for profit); the nature of the copyrighted work and the potential impact the use may have upon the potential market for or present value of the work. In general, the excerpts used for the purposes of explication in a classroom should be brief and should not constitute more than a small portion of the work from which they are extracted. If the segment copied for use in the class supplants what would otherwise have been a sale of a program, the duplication of even a small segment may represent an infringement of the copyright, particularly if it represents the "heart" of the copied work.

8. Question: Can I have a film that is in the "public domain" (i.e. the copyright has expired) transferred to videotape to show in the classroom more conveniently?

Answer: Public domain materials may be legally copied or transferred from one format to another. Unfortunately, it is often extremely difficult to determine the copyright status of particular works. Copying may be done only if: (1) the copyright has expired and has not been renewed (2) no individual elements of the film (music, literary basis of the film, etc) were copyrighted separately and are still protected by the law (3) the version of the film or video to be copied is the original work, not a colorized, restored, or otherwise altered version which may have been copyrighted as a new work. Often, an extensive search at the Copyright Office in Washington D.C. is necessary to determine the "public domain" status of a motion picture.

Full text of the US Copyright Law

Stanford University Copyright/Fair Use Web Site

Copyright Web Site

Information about public performance rights and permissions

Fair Use in the Electronic Age: Serving the Public Interest (American Library Assn.)

Digital Future Coalition
The Digital Future Coalition (DFC) was formed in the fall of 1995 to work towards a thorough, broad and balanced Congressional debate of U.S. copyright law and policy. DFC's 27 members represent virtually every segment of the "information economy" and include creators, consumers and distributors of information. DFC believes that any changes in the nation's intellectual property laws must be carefully crafted not merely to protect copyright proprietors and existing business models, but to foster broad public access to information, innovation in industry and education, and the privacy rights of all Americans.

Further questions? Contact Gary Handman, Head, Media Resources Center, Moffitt Library (643-8566)

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