QUESTION OF THE MONTH: Public Performance Rights

QUESTION

Dear CSM:

I've got a Fair Use question I'm hoping someone at the Center for Social Media can answer for me. We (the Gallaudet University Library) would like to purchase a DVD of the documentary The Greatest Silence: Rape in the Congo for our collection. Like most academic libraries it is not our practice to loan videos for public performances. We work closely with groups on campus (including dorm RAs) to ensure that they understand videos in the library collection are for classroom/education use only, and we monitor reserve use to ensure that students are not watching videos in groups. We do, on occasion, purchase videos with performance rights for groups on campus, but that is rare.

The Greatest Silence is being sold at a tiered pricing structure: $29.95 for home use, $89 for K-12 schools and public libraries, and $295 for universities, colleges, and institutions. The purchase price for schools and universities "includes public performance rights for classroom, organizational, or library use." They indicate that universities have no option for purchasing the film for any price other than $295.

I don't object to paying a bit more for a video than the cost to the home user, but I'm bothered by paying for "public performance rights for the classroom." Can you suggest a good way to address this issue with the vendor?

Thanks!

Sarah

ANSWER

Dear Sarah,

As you note, if you didn't buy public performance rights, then you can't show the film to the public. However, teachers do have a clear right under Section 110 of the Copyright Act (a special exemption for face-to-face education) to show a film as part of curriculum in a classroom. A library that restricts its lending to teachers in a classroom doesn't need any special rights. If it's part of the circulating collection, it's no longer under the umbrella of 110. But then in lending copies, libraries are under Section 109, which permits an owner of a copyrighted work to lend it to other people. If these conventional educational functions are all you are doing, then you don't need to pay for any special rights. You can be an ordinary consumer purchaser of the DVD.

This is a difficult moment for educational distributors; they have been used to tiered pricing, and that model is disappearing everywhere. They also may be unfamiliar with Sections 109 and 110.
Sections 109 and 110 are not Fair Use rights, by the way, but specialized exemptions. We hope that helps!

--The Center for Social Media

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