Who's Right on Video Copyright?

February 4, 2010

Is it illegal for professors to stream copyrighted films on private course Web sites?

The Association for Information and Media Equipment — an educational media trade group — says yes, and is threatening to sue the University of California at Los Angeles and possibly other colleges because of it. The university says no, but it suspended the practice and is seeking to settle the matter out of court.

This has left observers to debate among themselves whether what the university had enabled its professors to do was legal — and if not, whether it should be.

According to the trade group, the question over copyright infringement starts and stops with the fact that in order to stream a film from a hard-copy DVD, one must create an encoded digital copy that can be posted on a host server. The companies that sell the hard copies separately sell licenses to stream digital copies of the DVD content. The problem arose when the trade group was tipped off that UCLA was ripping the DVDs without paying the licensure fees.

The university, which has maintained its innocence under the "Fair Use" exemptions of the Digital Millennium Copyright Act, says it started making digital copies to stream on secure Web pages years before the educational film companies affiliated with the group began selling digital copies for streaming. It wasn't until last fall, UCLA officials say, that one of the companies came to them and asked if they'd like to pay for streaming versions of its products.

The current negotiations between the trade group and UCLA are being kept private, but according to Peter Decherney, a fair use expert and assistant professor of cinema studies and English at the University of Pennsylvania, a universally applicable answer on the question of legality might not even emerge if the battle were being fought in open court.

“Historically, practices using analogous technologies have not been settled through court decisions,” Decherney said in an e-mail, citing the ongoing push-and-pull over licensure of e-reserves. “…Each side takes incremental steps and waits to see the response. It is more like the Cuban Missile Crisis than the Yalta Conference.”

So, the issue of copyrighted video streaming is ripe for debate. Last week, that debate found a home in the comments section of a story on the controversy published here, as professors, legal experts, and industry players traded lengthy essays on the subject. Some commenters said the contretemps could draw necessary attention to the inadequacies of current copyright laws, while others called for an outright boycott of the companies represented by the association.

“In a time when higher education is on financial life support in this nation, the actions of this ‘association’ are inexcusable,” wrote one professor. Equally inexcusable, others asserted, is the fact that UCLA and other universities haven’t linked arms against this encroachment on open access.

Timothy Burke, a history professor at Swarthmore College, wrote in a comment that educational films rely heavily on the contributions of academics, and therefore academics should not be required to pay for them. “In effect, academic institutions subsidize the research or intellectual work of their own faculties, who then often give that work away to publishers, who then resell it back to the institutions at a high cost,” Burke wrote.

But some producers say that is a wildly inaccurate characterization of the educational media industry. Albert Nader, president and founder of Questar, Inc., one of the trade group’s 16 member companies, told Inside Higher Ed that of the 4,000 videos produced by Questar’s educational division, maybe five were produced by academics, tops. He said that while academics often contribute information to educational films, the vast majority of educational films are made by filmmakers who depend on royalties for their livelihood.

Academics may be content experts, Nader said, but they’re lousy filmmakers. The point of educational films is that they take content and produce something that is presumably a more useful teaching tool than, say, a video-recorded lecture, he said.

To the detriment of educators who wish to supplement their syllabuses with expert-made films, the business of educational filmmaking has been slowly whittled away in recent decades as the evolution of technology has made individual film sales less profitable and royalty checks smaller, said Nader. If institutions such as UCLA were allowed to make a digital copy, and let students stream it online, he said, the makers of each film would earn a percentage of the sale of a single copy per customer institution — not enough to eat on. “The academics don’t understand that,” Nader said.

Other educational media companies affiliated with the trade group had similar things to say about the issue. “In the old days, [a college] would buy one DVD per building, and now you’re buying one DVD fo the whole campus access,” said Linda Lee, vice president and general manager of Weston Woods, a subsidiary of Scholastic, Inc. “It doesn’t make economic sense to us.”

Lee added that Weston Woods has to pay filmmakers extra for rights to sell films in digital form, and if universities don’t pay licensure fees for the right to stream the films on the Web they cannot recoup that cost. “This is core,” agreed William Ambrose, the president of Ambrose Video Publishing, another trade group affiliate.

In other words: For the supply side, streaming-video licensure represents an essential revenue stream; for the demand side, it represents a marginal expense.

“If a college or university professor wants to use a film for his class, we’ll charge a fee of $149 for use in perpetuity,” said Nader, the Questar president. “$149 for a program is going to break a university? That’s absurd!”

But Steve Worona, directory of policy and networking programs at Educause, said universities should not be expected to pay the film companies if they are not legally required to, regardless of whether they can afford to do so. “A business model that says ‘You have deep pockets, therefore you ought to pay’ doesn’t strike me as a business model that has long-term staying power,” said Worona. “We’ve got to learn how to do better than that.”

That starts with acknowledging that digital technology has made “copies” an obsolete denomination, Worona said. “The new business model must not be based on counting copies,” he said.

One alternative might be charging based on use. Lawrence Daressa, the co-director of the affiliated company California Newsreel, in a pointed essay in the comments section of last week’s story, proposed a system whereby students who want to view an assigned film at home and at their leisure could rent access to streaming versions of the film directly from the distributors. Such a system would, as Daressa put it, “link price directly to use.”

Such a system might shed some light on another question: How much is streaming video actually used in higher education?Allen Dohra, the president of the trade group, has said that in addition to UCLA the group is looking into similar breaches at three other universities (which he declined to name). But he also says he does not know how widespread the practice is. So how many institutions are actually doing what UCLA was doing?

According to data from the Campus Computing Project, campus CIOs estimated that 14 percent of classes made some use of “online video resources.” That survey did not separate out the use of non-copyrighted video content, and several vendors contacted by Inside Higher Ed said they do have higher-education clients who comply with licensure fees in the case of copyrighted material. So the percentage of classes streaming copyrighted material on the Web is probably lower than that. (Update: This article originally reported that Campus Computing Project data suggested that 14 percent of institutions — not classes — use streaming video. The error has been corrected.)

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