Imagine that you bought a new jacket on Amazon.com and received an email a month later from the manufacturer telling you that you paid the wrong amount for the jacket and that you owe the company several hundred dollars more. This may seem implausible, but for academic libraries that buy DVDs through distributors like Amazon.­com, it is a recurring problem: after buying DVDs at retail prices, they get an official-looking email saying they owe more.

This bizarre double-billing occurs owing to fundamental misunderstandings over the legal rights granted by the Copyright Act to both rights holders and educators. Rights holders believe they are entitled to extra fees from schools and other institutions, and libraries too often believe they must pay up. It’s a recipe for needless spending, something libraries can ill afford. At the same time, if filmmakers want to recoup the high cost of production, they must understand when the law does (and does not) allow them to charge different prices for their work.

Licensed to lend?

Confusion between a sale and a license probably explains at least half of the misguided after-the-fact demands made by video vendors. The distinction is crucial: if the transaction is a sale, then the library now owns the copy and can do any lawful thing with it, including lend it to faculty to show in their classrooms (more on that below). If it is a license, vendors can set whatever limitations they like and even sue libraries for exceeding them.

Vendors seem to believe that by designating copies (whether in their own catalogs or by notices printed somewhere on the DVD packaging) as “licensed for personal use only” and the like, they can unilaterally transform a sale into a license and bind the purchaser to their terms. A typical vendor email will say, “You purchased a video that is licensed solely for personal use; you cannot screen that video in the classroom.” In reality, courts have rejected these tactics for more than 100 years, since the Supreme Court refused to enforce an inscription on the inside of a book that purported to bar reselling the book for less than $1. Companies can certainly use licensing to control how media is used—witness the software industry’s successful use of “click-thru” licenses to block resale of expensive programs—but a unilateral declaration is not enough.

What is public performance?

The second misunderstanding that fuels vendor demands for more money from libraries has to do with “public performance rights” (often referred to by the shorthand “PPR”). Even if a work is purchased, rather than licensed, copyright does require additional permissions for the right to “publicly perform” certain kinds of works. Generally speaking, even if you lawfully buy a copy of a film, you need permission from the copyright holder to show that film “publicly” (that is, in a group beyond an ordinary gathering of friends and family).

Screening films in a classroom might qualify as a public performance (and so require purchase of PPR) if not for a vital legal provision known as the classroom teaching exemption. As codified in Section 110(1) of the Copyright Act, it allows teachers to show lawfully made copies of films (and make other “performances”) in their classes without PPR. While other campus performances may require PPR—a screening of Miracle on 34th Street at the student center theater to help students relax during winter finals season, for example—the core teaching uses that academic libraries support receive special legal protection.

Therefore, if a teacher or library truly owns an item (rather than licensing it), whether it is bought from a distributors’ website, a store, or a garage sale, PPR are not needed to show the film in class. Congress provided very specifically that teaching is different and gets privileged treatment.

Some filmmakers and distributors seem to be unaware of this provision. Rather than charging a uniformly higher price across all channels, including value-added content with educational editions, or using real, enforceable licenses to support differential pricing, they try to have it both ways: sell the same product to consumers and to libraries but charge libraries more by “including” unnecessary rights.

This tactic is not limited to a few niche educational vendors. Even famed indie filmmaker John Sayles’s website states in the Educational DVD Release announcement for Amigo that “screening a ‘retail consumer DVD’ in a classroom is a violation of copyright law.” This is simply not true. Sayles and all the filmmakers and vendors who serve educators are welcome to charge any price they deem fair for their films, or to “include” whatever rights they believe a given purchaser may genuinely require, but they are not free to mislead consumers about which rights they must have. Knowledge is power, for both sides of the librarian-vendor relationship, and it’s past time both sides learn their rights.

Laura Jenemann is Media Librarian and Liaison Librarian, Film Studies and Dance, George Mason University, VA. Brandon Butler is Practitioner in Residence, Washington College of Law, American University, Washington, DC. They have both written previously on the topic of classroom exemptions for public performances and displays. We welcome opinion pieces for BackTalk. Please send them to mschwartz@mediasourceinc.com