SCMS Continues to Defend Educational Fair Use

Film and Media scholars rely on copyrighted material for teaching and research, and SCMS has a long history of defending fair use in the U.S. The Society has recently participated as a friend of the court (amicus curiae) on behalf of our members in a fair use appeal.

In the 1980s, John Belton represented the Society before the Copyright Office of the United States when it considered expanding the authorial rights of film directors. In 1993, a committee led by Kristen Thompson drafted a report that made the case that fair use permitted reproductions of films stills in academic work. That document was adopted as policy by many university presses, and permitted decades of well-documented books and articles by media scholars. A decade and a half later, SCMS's public policy committee wrote a new statement, identifying fair use best practices in film and media teaching and publication. In 2006, Society member Peter Decherney successfully argued for an exemption to the Digital Millennium Copyright Act, making it legal for media professors to make clips from DVDs for teaching. SCMS submitted a letter of support, and in 2009 and 2012 the Society joined Peter and others to expand the exemption to encompass students, educators in all fields, and documentary and noncommercial filmmakers.

This April 2013, SCMS joined another effort to protect educational fair use and signed onto an amicus brief in the 11th Circuit Court of appeals. Academic publishers Cambridge, Oxford, and Sage all sued Georgia State University over its e-reserve practices, i.e. making teaching materials available though courseware. The university won a big victory in the first round of the case. The district court found that 70 of 75 examples under question were clearly not infringing. The material was used for education and the amounts assigned were small. It was a triumph, but the decision was also overly narrow. Represented by the USC Intellectual Property and Technology Law Clinic, SCMS joined the American Association of University Professors, the Modernist Studies Association, and University of Pennsylvania professors Peter Decherney and Tsitsi Jaji to argue that course reserves can also be "transformative." As many courts, including the Supreme Court, have held, even the use of entire works can be protected by fair use when the purpose of the use is different than the originally intended purpose. When works made by the entertainment industry, for example, are used for teaching, comment, and criticism, they are likely to be fair uses. Briefs by academic authors and library associations made very similar points.

This is a case that affects everyone teaching film and media. Arguments are expected to take place in late May, and a decision will follow. We will update you as soon as we learn of any decision. In the meantime, because we know how vital such issues are to our members, we want to keep you informed of our work on your behalf.