Sorting out exceptions

A couple of recent issues that have crossed my desk have drawn my attention to an aspect of copyright law that has the potential to be very confusing. Many people recognize that copyright works by granting a bundle of exclusive rights to a copyright holder for a limited time, then defining a long series of exceptions to those exclusive rights so that the rights holder’s control is balanced with opportunities to use previous works in the creation of new intellectual content. The difficulty that often arises is in recognizing which exceptions apply to which rights and, therefore, to which situations.

Most of the copyright exceptions are exceptions to a specific right or rights within the copyright bundle. If an activity implicates other rights than the one(s) to which the exception applies, the user should not rely on that exception. The copyright bundle consists of five basic rights – reproduction, distribution, public performance, public display, and the making of derivative works. The copyright holder has the exclusive right to authorize or deny these activities UNLESS an exception applies. So let’s look a couple of examples and see how the exceptions apply to certain rights in the bundle but not to others.

The face-to-face teaching exception is familiar to most teachers who want, for example, to show a film in their classrooms; it allows performances as long as the copy that is screened is legally made. This is an exception to the performance right (and display right, in the case of art slides, for instance), but not to the other rights in the copyright bundle. If the teacher want to transfer the film from VHS to DVD (thus making a copy and implicating the reproduction right), or wants to hand out those DVDs to every student (implicating the distribution right), or is making a compilation of film clips (implicating the derivative works right), the face-to-face teaching exception, by itself, will not authorize those activities. Other exceptions may apply – the format conversion and the compilation of clips are both good candidates for fair use – but it is important to recognize the limits of the face-to-face performance exception and recognize that other justifications must have to come into play.

I recently responded to a question about using an ELMO projector to project the pictures from a childrens’ book for a library’s reading time. Part of the “first sale” exception (section 109(c)) covers this activity nicely; it is written to allow just this kind of display of a legally obtained work. But it does not cover an almost identical inquiry about scanning the same pictures into PowerPoint for display. Why not? Because an ELMO does not make a copy of a work, while a scanner does. The 109 exception allows display but does not authorize reproduction. Again, other exceptions may allow the PowerPoint projection, but they must be exceptions that permit reproduction in addition to display.

Applying copyright exceptions requires attention to exactly which rights any given exception applies to, as well as an awareness of how certain technologies function vis-à-vis the different rights included in the copyright bundle. And most important, an awareness of the limitations inherent in each of these exceptions reminds us how important fair use is. Fair use is the only exception in our copyright law that is not limited in one way or another to specific rights; when it applies, it can provide an exception to any of the copyrights. In the “Pretty Women” case alone, fair use provided an exception to the reproduction, distribution, performance and derivative works rights. It is precisely because fair use is so flexible that it is vitally important in education; in several of the cases suggested above, where other exceptions have reached their limits, it is fair use, applied carefully and thoughtfully, which may allow the activity.