This question was asked to the Box of Broadcasts (BoB) team at Learning On Screen (https://learningonscreen.ac.uk/) to which the University has a subscription that all UK located University of Essex staff and students can use via single sign on. More information about BoB can be found here.
RESPONSE FROM BoB [please note that the content of this posting, as well as the information provided at the links do not constitute legal advice]
If you are showing clips (not full programmes) from BoB broadcasts and participants [in the Zoom session] are University of Essex students based in the UK**, the use would be covered by the ERA licence and therefore entirely lawful. However, if students can access either the live broadcast or the recording from outside the UK, this would not be covered by the ERA licence and so in principle it would be unlawful. **There is now a pilot in place to allow EU access: Would
you like your old and new playlists to be playable in the EU? If so, please
contact the bob team so they can give you access to the tool: bob@learningonscreen.ac.uk
If this has answered the question for you then the remainder of this post does not need to be read. If it hasn't, then please read on.....
For uses which are not covered by the ERA licence, you could rely on copyright exceptions. In the UK copyright act, there are two exceptions you can potentially rely on to screen films or broadcasts online to a closed group of students:
If the screening is before an audience consisting of university students and lecturers through a password-protected VLE [Moodle] that only allows access to that audience, in principle section 34 could cover this use. The main issue is that section 34 is an exception to the public performance right, whereas screening films online is traditionally considered a 'communication to the public'. . However, given the current circumstances, a screening via a protected VLE is more similar to a public performance in the class than to a communication to the public (as a discrete group of students would not be considered the 'public'), so one could rely on section 34 for this kind of use. But other experts disagree with this, including Dr Emily Hudson (King's College London), the author of the paper linked below.
Another possibility is to rely on section 32 - illustration for instruction. The main advantages offered by this exception compared to section 34 are:
- It is an exception to all economic rights, including communication to the public; - It can't be overridden by contract (section 32(3)).
However, unlike section 34, illustration for instruction doesn't explicitly allow the screening of entire works. It is a 'fair dealing' exception, meaning that in addition to the various application criteria listed in the section (e.g. providing sufficient acknowledgement, non-commercial use), the use must be considered 'fair'. When assessing the fairness of a use, courts consider various factors including excessive use in relation to the purpose (you should only use what you need in order to illustrate your point for the purposes of instruction), and whether your work is commercially competing with the one you are using. In principle, one could argue that screening an entire film or programme is necessary to achieve the purpose of illustration for instruction.
Please note that - unlike using works under the terms and conditions of the ERA licence - relying on copyright exceptions is always a matter of risk management. Exceptions are defences that can be relied upon if your use is challenged by the copyright owners, rather than rights to use the content. They are also based on ambiguous concepts such as 'fair dealing' itself, which are not defined in the statute but by courts on a case by case basis.
USING OTHER VIDEO SOURCES
Using copyright protected video from other sources out with BoB would need to be considered individually to clarify if the ERA license and / or 'fair dealing' could be argued.