Light in Custody: Documentary Films, the TEACH Act and the DMCA

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I. INTRODUCTION

Legal issues surrounding the distribution and licensing of independent documentary films in the digital age are just beginning to emerge. At present, most independent documentaries, which are frequently distributed by small, specialized distributors to educational institutions, are sold on VHS analog tape. As distribution via digital formats becomes increasingly affordable and technologically possible, distributors are beginning to convert parts of their collections to DVD and are considering eventually streamed video or downloaded video-on-demand. At the same time, educational institutions are developing new teaching models such as distance learning programs, which require that teaching materials be available in digital form for student access. (1) With these new formats come new uses--and misuses--of films. All of these developments raise questions of film licensing which both the larger film industry, of which documentary distributors are a small part, and the law are struggling to address. This comment will focus on independent documentary makers and distributors.

After the Introduction, Part II of this comment sets the stage for the discussion, describing the present context for distributing educational documentaries. This section provides technical details about current format and licensing practices, a general description of the economics of documentary filmmaking, and the relationship of documentaries to the Fair Use Doctrine. It concludes with a discussion of the most recent technology shift, which produced the new issues that are the main subject of this comment.

Part III describes the new laws and the short and long term licensing questions brought about by new laws and new technologies. Two statutes inform this discussion: the Digital Millennium Copyright Act (DMCA) (2) and the Technology, Education and Copyright Harmonization (TEACH) Act. (3) The most relevant provision of the DMCA is the much-contested anti-circumvention provision (17 U.S.C. [section] 1201) which both protects and limits rights of documentary film producers. The provision prohibits the unauthorized circumvention of encryption, a kind of copy protection, which producers may build into a digital delivery format on which they are delivering their product. That format might be DVD, streamed video, downloaded video-on-demand, or some other format by which a film (as a digital file) may be distributed. Encryption is designed to prevent access to a digital product, acting as a technological lock one can embed in a digital product to prevent illegal access and, thereafter, reproduction. It is one function of emerging Digital Rights Management Systems that can be used to police licenses using technology. (4) The law protects the interests of a producer against certain types of conduct by prohibiting access to the encrypted product. If unauthorized access is a violation of the law, then copying of an encrypted file would be impossible. It also severely curtails that same producer's ability to use the copyrighted materials of others in non-infringing ways under the Fair Use Doctrine of the Copyright Act. (5)

Finally, how to best shape and control licenses in the digital age is complicated by the permissions available to educational institutions to reproduce intellectual property under certain circumstances. The Fair Use Doctrine suggests that educational institutions might be allowed to digitize analog materials not yet available in digital form. More recently, however, the TEACH Act addresses this issue directly. The Act has been described as an effort to "strike a balance between protecting copyrighted works, while permitting educators to use those materials in distance education." (6) The statute sets out stringent conditions under which this use may occur, conditions which would seem to favor the copyright holder and protect its future market. But it provides a back door around those requirements with regard to acquiring copyrighted material not yet available in digital form. …