[A2k] K. Crews: Copyright Q&A: Films, Performances, and “Educational Prices"

Manon Ress manon.ress at keionline.org
Tue Apr 26 09:01:22 PDT 2011


Copyright Q&A: Films, Performances, and “Educational Prices"
by Kenneth Crews on April 26, 2011

In a previous question, we explored the ability to show motion
pictures in the classroom and as part of an educational film series
sponsored by, for example, the French Department at a university.
That question stirred a few follow-ups from readers.  Here is the

Our library purchases many motion pictures and other audiovisual
works, typically on DVD.  Sometimes the transaction is a simple
purchase, but often the films are sold at different prices (i.e.,
higher prices) for libraries and educational institutions.  In
addition, the sales to libraries often include additional terms on the
purchase order or invoice about “performance rights” and such.  Do I
have to pay the higher price?  Is the fine print that purports to
restrict uses of the film valid and enforceable?

Good questions.  Let’s deal with the first one.  Here is a common
situation: You can find a film on DVD in a store or online available
to the public for $20.  You can find the same DVD from your library
supplier at the special “educational” price of $120.  Discrimination?
Certainly!  Probably perfectly legal, but crummy.  Quite simply, the
supplier is pricing it higher because some libraries can afford it.
The supplier might also rationalize that libraries squeeze more uses
from one disk, perhaps even displacing some individual sales.  Maybe.
Whatever the rationale, may a library just buy the $20 version for the
collection?  Legally, the answer is probably yes in ordinary
situations.  A library is generally free to shop at Target or Amazon
for movies, they they have what you want.  In the process, I would
watch for these possibilities:  First, if the sale appears in any way
clearly and contractually limited to individuals only, and not to
libraries, I would pause to confirm whether I am under any contractual
obligation.  Second, I might have some ethical hesitation.  Many
specialized and technical films simply do not make many individual
sales, and the “educational price” may be part of the bargain to
sustain the market.  Frankly, I have to balance that against the
ethics of charging more.  Bottom line: Retail purchases of mass-market
DVDs are likely fine, but give another look when buying more
specialized works or when contractual obligations are injected into
the deal.

Your second question about fine print is more of a legal question.  I
am of the school of thought that a unilateral statement (such as “Home
Use Only”) does not override the statutory right to show the
audiovisual work in the classroom.  A century ago, the U.S. Supreme
Court refused to enforce statements printed on books that would have
restricted resales.  However, look once again for truly contractual
terms.  Watch for clear notices on invoices, purchase orders, and
license agreements that attempt to allow or not allow various uses of
the film that may be important for you.  In general, you can by
contract redefine the terms of use.  You can by contract give up
rights that you have under law—and at the same time acquire additional
rights.  Know that the law allows.  Know what you are gaining or
giving up when you enter into a contract.  If the "educational price"
gives you something that you don’t already have, then it may be
worthwhile.  Putting the two questions together, you might be more
willing to pay the higher educational price if you were getting
something more for your money—perhaps the right to upload the film
onto a server, or perhaps the ability to do a remix with instructional
materials for teaching purposes.  Most important, read and understand
the fine print and make a careful and informed decision.

[This Q&A is courtesy of the Copyright Advisory Office of Columbia
University.  It is for information purposes and is not legal advice.]

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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