Copyright Office Gives Some Guidance to Documentary Film Makers and Professors

The Copyright Office has finally issued regulations on what activities can be properly classified as Fair Use when it comes to using audio visual work. Specifically, the Copyright Office states as follows:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.

Basically, what this means is that college professors (but not high school teachers?), documentary filmmakers, and makers of non-commercial videos can use certain software programs (such as Mac The Ripper and Handbrake) to copy portions of copyrighted motion pictures and other works in the same way that copies of works in other formats (VHS, for example) may be used for scholarship and criticism. This basically expands the existing law to include new areas of technology. What is more interesting about the new regulations is that they include documentary filmmaking and non-commercial videos. For years, I have been uneasy advising documentary filmmakers as to their rights due to the uncertainty in this area of law. Also, the other exception, “non-commercial video” would presumably cover “mash-ups” and other works that young filmmakers create. This seems like another example of the law playing catch-up with technology, and it is a most welcome advance.