Is it considered fair use for a teacher to show a popular series rented from a video rental store to students for teaching purposes?

Is it considered fair use for a teacher to show a popular series rented from a video rental store to students for teaching purposes?

Many school teachers, in order to make their lessons more interesting and enhance student enthusiasm for learning, go to video rental stores to rent films related to their teaching content or directly purchase DVDs or VCDs from bookstores to show in the classroom. They may even gather students from several classes to watch and discuss the films afterward. Does this usage qualify as fair use? Are there any safer ways to utilize others' audiovisual works?

Regarding the fair use of others' works in teaching, Article 46 of our Copyright Law states: 'I. Schools established in accordance with the law and their teaching personnel may reproduce publicly published works of others within a reasonable scope for the needs of teaching. II. The proviso in Article 44 applies similarly to the preceding item.' Schools or teachers may reproduce publicly published works of others for teaching needs within a reasonable scope, as long as it meets the aforementioned conditions, without needing prior consent from the copyright owner. However, screening films in the classroom does not constitute 'reproduction'; it is considered a public performance to a specific audience (the public), which falls under the scope of 'public exhibition rights' protected by copyright law. Therefore, fair use cannot be claimed under Article 46, and other fair use provisions must be sought.

When referring to the fair use provisions for public exhibitions, they are primarily based on Article 55 of the Copyright Law, which states: 'For non-profit purposes, without directly or indirectly charging any fees from the audience or listeners, and without compensating the performers, one may publicly recite, broadcast, screen, or perform publicly published works of others during activities.' The conditions to determine whether this article is applicable include: 1. It must be 'non-profit'; 2. There must be 'no fees charged directly or indirectly from the audience or listeners'; 3. There must be 'no compensation paid to the performers'; 4. It must be publicly published works; 5. It must occur in a 'specific activity.' If a teacher has an urgent need to publicly screen audiovisual works due to special events or teaching requirements, and meets the aforementioned criteria, fair use can be claimed under this article. However, if the films chosen by the teacher are not closely related to the teaching activities and are more 'recreational' or 'entertaining' in nature, they could potentially be deemed to have a 'market substitution' effect under Article 65, Paragraph 2 of the Copyright Law, which may still infringe upon public exhibition rights and should be approached with caution.

For school teachers needing to use audiovisual works for teaching purposes, and due to the involvement of 'public exhibition rights,' I have the following suggestions:

1. If the audiovisual works are regularly needed for teaching, such as educational films produced by commercial channels on topics like human anatomy, the Big Bang, or World War II, which hold significant educational value, these should not be used for temporary public screenings. Instead, the school should obtain public screening authorization from the producers (usually by purchasing the 'public performance version'). In fact, there are private companies that specialize in providing licenses for such films to schools, and teachers with teaching needs should seek assistance from their schools in procurement.
2. If a teacher wishes to use specific film content as supplementary teaching material when preparing lessons, it is advisable to clip appropriate sections of the films and incorporate them into their teaching materials in a manner allowed by Article 52, by using the content as part of their lesson. For example, during a presentation, when discussing a specific topic, they can link to audiovisual files for a 5 to 10-minute showing. Even if this involves public screening, if done as a reasonable 'quotation' as part of the new work of teaching materials, fair use can still be claimed.
3. If there is indeed a need to screen the entire film in class, given the substantial market substitution effect, the likelihood of claiming fair use under Article 55 is lower. It is advisable to obtain the authorized version for public screening for this purpose.

• The content of this article is excerpted from the Intellectual Property Office of the Ministry of Economic Affairs website
• Authors: Lai Wenzhi, Wang Wenjun