Permission and the Fair Use Doctrine

Television programs, like most other types of expression, are protected by federal copyright laws. This means that as a general rule, a TV program can legally be taped and shown to students only with the copyright owner's permission.

Fortunately, the Copyright Act contains a special exception. Under what is known as the "fair use" rule, someone other than the copyright owner may make limited use of a copyrighted work without permission for purposes such as teaching, research, scholarship, criticism, parody, and news reporting.

Recording Guidelines

To help educators determine when off-air taping is and is not a fair use, a set of concrete guidelines was created by a committee comprising representatives from educational organizations and copyright owners. These guidelines (known officially as "Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes") do not have the force of law and have never been tested in the courts. Many producers do not agree with them, and many teachers aren't thrilled either, because they offer only limited, temporary access to broadcast materials. However, most copyright experts believe that taping that falls within the guidelines is permissible and would be upheld as a fair use if challenged in court.

The guidelines apply only to off-air taping by nonprofit educational institutions, including all public schools and most private schools and colleges.The guidelines do not apply to for-profit language or trade schools.

Here are the basic rules:

• A classroom teacher who wants a particular program taped should ask the school to tape it.

• The tape may be shown only during the first ten consecutive school days after it is made, and only in a classroom or similar place devoted to instruction. A tape may be shown to several classes if appropriate.

• A limited number of copies may be made from each off-air recording. Each copy is subject to all the provisions governing the original recording.

• The tape may not be altered in any way. For example, tapes may not be edited to create an anthology or compilation.

• After the ten-day classroom use period expires, the tape may be used only for evaluation -- that is, to determine whether it should be bought or licensed for permanent inclusion in the teaching curriculum. Not later than 45 calendar days after the tape was made, it must be destroyed.

• Only programs broadcast to the general public may be taped. This includes all programs broadcast to homes and schools. The guidelines do not apply to programs available only from cable television services such as Showtime, HBO, The Disney Channel, C-Span ,and ESPN.

The guidelines do not discuss whether or not a teacher may record a program at home for school use. It seems likely, however, that the practice is permissible so long as all the other guidelines are followed.

No independent organization enforces these guidelines. Schools that want to document their compliance should make and keep records of teacher requests, dates of taping, times shown, and number of copies made.

Beyond the Guidelines

What the guidelines don't allow -- for example, keeping a taped program more than ten days or taping a cable channel offering -- may or may not be permissible under the fair use doctrine. To determine whether or not a particular use is a fair use, four rather vague factors must be considered:

• The purpose and character of the use.
• The nature of the copyrighted work.
• The amount of copyrighted material used.
• The effect of the use on the present or future market value of the work.

Here's a simple way to think about: a use that takes money out of a copyright owner's pocket is probably not a fair use. Thus, taping beyond the scope of the guidelines is probably not a fair use if the program's producer makes videotapes available to the schools or the public for purchase or rental, because the taping reduces the market for such tapes.This is particularly true where videotapes are made available to schools at special discounts. If videotapes are not available, limited taping might be a fair use, but no one knows for sure because no court has considered the question.