Off-Air Recording of Broadcast Programming

As a result of a March 10, 1983, Federal Court decision, extreme caution is urged in off-air taping of copyrighted materials. The United States District Court of Western New York ruled that any temporary videotaping and playback in classrooms of copyrighted materials readily available by rental, lease or license duplication agreement is infringement and is not fair use. The following guidelines for off-air recording applies to "broadcast television" and not to cable cast programming. Broadcast television is available to the general public through open air waves, at no cost and with no special equipment. The following guidelines were developed to apply only to off-air recordings by non-profit educational institutions.

1. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable re-transmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately.
2. Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) calendar day retention period. "School days" are school sessions days – not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions – within the forty-five (45) calendar day retention period.
3. Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
4. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
5. After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
6. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
7. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
8. Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines
9. Public Law 94-553, Section 110, allows educators to use performances or displays of audio visual material without explicit permission from the copyright owner if those showings are purely for educational purposes by a nonprofit educational institution.
   
   Public Law 94-553, Section 110(1)
   
   Performance or display of a work by instructors or pupils (is granted) in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images is given by means of a copy that was not lawfully made…and that person responsible for the performance knew or had reason to believe was not lawfully made.
   
   Use of prerecorded video tapes can be both a copyright issue and a licensing issue. This section of the law authorizes a wide variety of performances and displays in face-to-face teaching, but there are important limitations. Guidelines for use of prerecorded videos by nonprofit educational institutions are outlined in Section 110(1) and (4). The fact that many materials are now easily obtainable or may be brought into the school by students does not remove the responsibility from teachers and administrators to evaluate this material prior to its use.
   
   Permitted Use
   
   
   1. They must be shown as part of the instructional program.
   2. They must be shown by students, instructors, or guest lecturers.
   3. They must be shown either in a classroom or other school location devoted to instruction such as a studio, workshop, library, gymnasium, or auditorium if it is used for instruction.
   4. They must be shown either in a face-to-face setting or where students and teacher(s) are in the same building or general area.
   5. They must be shown only to students and educators.
   6. They must be shown using a legitimate (that is, not illegally reproduced) copy with the copyright notice included.
   Prohibited Uses
   
   1. They cannot be used for entertainment, recreation, or even for their cultural or intellectual value but are unrelated to teaching activities.
   
   2. They cannot be transmitted by radio or television (either closed or open circuit) from an outside location.
   
   3. They cannot be shown in an auditorium or stadium before an audience not confined to students, such as a sporting event, graduation ceremony, or community lecture or arts series.
   
   4. They cannot involve an illegally acquired or duplicated copy of the work.