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How Copyright Limitations and Exceptions Facilitate Social Distancing

· March 23, 2020

People practicing social distancing in response to the COVID-19 pandemic have been able to migrate many daily activities to the online environment thanks to copyright limitations and exceptions.

Internet Access. The starting point, of course, is Internet access. Internet access enables us to purchase groceries and other necessities online; send work-related emails and participate in video conferences; continue classes at all levels of education; stream religious services as well as films and television shows; and remain connected to friends and families through social media. The safe harbors of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, enable Internet access services to provide this access without fear of liability for copyright infringing activity by third parties over their networks. Consumers and businesses alike pay for this Internet access, but the cost would be significantly higher if the service providers had to contend with the cost of copyright infringement liability for their subscribers’ actions. Alternatively, the service providers would have to monitor user communications, at the expense of user privacy; or use filters and bandwidth limitations on uploads, at the expense of functionality.

Social Media Services. Services such as Twitter and Facebook enable businesses and individuals to communicate freely with the world while maintaining a social distance. The DMCA’s safe harbors allow these services to operate without facing copyright infringement liability, so long as they comply with the DMCA’s notice-and-takedown regime. In the absence of the safe harbor, the services likely would need to change their business model, either charging for access or vetting subscribers.

Education. Educational institutions have shifted to the online delivery of instruction within a matter of days. As noted above, the technological infrastructure for this shift was enabled by the DMCA. But the educational institutions themselves seek to comply with the copyright law. 17 U.S.C. § 110(1) permits “the performance or display of a work by instructors or pupils in the course of the face-to-face teaching activities of a non-profit educational institution, in a classroom or similar place devoted to instruction.” In reliance on this exception, instructors at all levels of education have constructed lessons that incorporate the performance or display of text, images, music, and audiovisual works. The sudden migration of courses from the physical to the online classroom has prompted instructors and administrators to wonder whether these works can still be used in online classes. Fortunately, there are two applicable exceptions. First, 17 U.S.C. § 110(2) permits the performance or display of portions of works by transmission “as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of…an accredited non-profit educational institution.” The exception contains certain restrictions, such as employment of technological measures that reasonably prevent the students’ retention of the works after the end of the course. Many of the platforms used by the educational institutions incorporate these technological measures. Second, to the extent that an institution cannot meet the specific requirements of Section §110(2), it can rely upon the general flexibility provided by the fair use right, 17 U.S.C. § 107. 

Religious Institutions. Religious services often include copyrighted music and readings from copyrighted works (for example, translations of the Bible). 17 U.S.C. § 110(3) permits the performance of a nondramatic literary or musical work “in the course of services at a place of worship or other religious assembly.” Like schools, many religious institutions have shifted their services online. But unlike with schools, there is no exception that applies specifically to online religious services. Section 110(3) arguably applies to a stream originating from a place of worship or other religious assembly. Similarly, Section 110(3) could apply to a stream from the house of a minister or cantor leading services. But even if Section 110(3) were not interpreted this broadly, a court almost certainly would find that fair use permitted the streaming of copyrighted works during the course of religious services, to the extent that the use was comparable to that made during in-person services prior to the pandemic.

User Creativity. The sheltering in place has engendered a tidal wave of user creations posted online, such as videos of neighbors singing popular songs together from their balconies. These noncommercial creations expressing hope and human resiliency likely are fair uses.

A final connection between COVID-19 and copyright: a Canadian start-up detected the emergence of COVID-19 nine days before the World Health Organization (at the end of December 2019) through its data-mining of hundreds of thousands of sources of information. Data-mining invariably requires copying permitted in the United States by fair use and fair dealing in Canada.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.