Friday, March 20, 2020

Does Coronavirus Trigger Copyright Exemption?

Dear Rich: I am writing on behalf of a large group of film professors whose colleges and universities are contemplating moving instruction online due to Coronavirus concerns. Can we temporarily move our face-to-face screenings online without violating copyright law? Does the 2018 "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" allow us to rip DVDs for this purpose?
The coronavirus creates unchartered territory for copyright lawyers. Fortunately, an assortment of college, university, and public librarians have issued a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Although the statement did not address face-to-face screenings directly, it did provide some guidance for fair use and circumvention.
Fair use.  As for fair use, the librarians wrote:
"While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use."
We agree and suggest that your adherence to the statement's principles, including documentation of your efforts will go a long way to heading off potential litigation. We would also suggest that you follow the standards presented in 17 U.S. Code Sec. 110 (2) regarding the prevention of unauthorized copying or dissemination.
Circumvention. As for ripping CDs, the statement concludes:
"[T]he current exemptions [to DMCA circumvention rules] extend only to copying “short portions” of motion pictures for use in certain types of teaching, not to copying entire works, even when doing so is clearly fair use. Courts disagree on whether circumvention violates the DMCA when the underlying use is non-infringing (for example, because of fair use) and on what constitutes circumvention."

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