By: Anthony Julian
Distanced education and separated social communication during the COVID-19 pandemic came with endless challenges. In addition to the devasting numbers of lives and jobs lost, serious concerns have been raised about the emotional toll many are facing in isolation.[1] Some individuals have tried to find ways to energize their separated lives with remote entertainment. Whether it be a professor attempting to liven up the classroom with a song during a Zoom presentation or friends hosting a virtual movie watch party, copyright holders are concerned about the causal spread of their property.[2] Even in these smaller situations, how should infringement be viewed when comparing the interests of the individuals stuck at home and the copyright holders themselves?
Simply, a copyright holder has the exclusive right to their work and can choose who uses it and how.[3] However, one very important limitation is “Fair Use.”[4] There could potentially be no copyright infringement if the use is for various purposes such as criticism, teaching, and research.[5] Factors that should be considered are (1) the use’s purpose and character, including whether the use is for a commercial nature or nonprofit education purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the use’s effect upon the potential market for or value of the copyrighted work.[6] This is why non-profit education can use certain copyrighted works.[7] As a copyright law professor mentioned, when it comes to broadcasting works on platforms such as Zoom, it becomes “complicated” and a very fact-specific analysis.[8] One important factor is how long you use the work and how many people see it.[9] What happens if someone finds themselves outside of Fair Use and using a work in an improper way? Virtual meeting companies like Zoom clearly prohibit copyright infringement.[10] Zoom also gives detailed instructions how copyright owners can contact Zoom about any infringement of their work.[11]
Should copyright holders bring copyright infringement lawsuits over improper smaller uses? Arguably, the answer is an easy yes. A continuous multitude of small improper uses of copyrighted material is an issue. The film and television industry predicts they could lose up to $160 billion in the next five years because of COVID-19’s effects.[12] The music industry is also struggling, as countless employees have been laid off in the live event industry, and at one point, the industry was predicted to lose $9 billion in 2020 alone.[13] Therefore, in an industry that thrives in non-socially-distant settings, it is understandable that they will want to protect their works even more so during a pandemic.
However, the impacts of self-isolation should not be ignored.[14] Not to mention the difficulties that not only students face during remote instruction, but the difficulties teachers face while teaching and also keeping the class involved.[15] In addition, Fair Use helps explain why a family watching a movie virtually looks a lot different than someone streaming a band’s live set without permission.[16] If the smaller uses turn out to be improper, it may seem slightly sadistic to go after the teacher struggling with remote instruction or a family spread across the country entertaining remotely. Such infringement claims currently seem distant, but concerns rise as remote education and entertainment continue to be our norm. Loneliness in the pandemic is a serious problem, and perhaps threatening to penalize someone for finding an entertaining way to meet with others in isolated settings should not be part of our new normal.
Rather, maybe these laws and platforms should better inform users how to properly use copyrighted works. Commentators have already expressed that copyright laws need updating and must be more protective in the internet age.[17] Some argue as COVID 19 is changing everything, now would be a perfect time to do this.[18] Updating the technology to better inform users about potential infringements rather than hidden away in the terms and conditions is a start. Instagram even found a better way to notify users when they may misuse a copyrighted work.[19] The platform will directly inform the user if they are streaming music they do not have permission to do so.[20] A final and important suggestion is cooperation between legal officials, media giants, and the user to ensure copyright protection and ease for proper use, rather than the unknown complex legal process it is now.[21] In conclusion, balancing physical and mental health while ensuring that copyright holders are properly accredited is critical during the COVID-19 pandemic.
[1] Sujata Gupta, Social Distancing Comes with Psychological Fallout, Science News (Mar. 29, 2020, 6:00 AM), https://www.sciencenews.org/article/coronavirus-covid-19-social-distancing-psychological-fallout.
[2] Edward Klaris, Coronavirus Drove a Boom in Virtual Content; to Protect Artists, Copyright Law Must Catch Up, L.A. Times (June 29, 2020, 5:00 AM), https://www.latimes.com/entertainment-arts/business/story/2020-06-29/coronavirus-virtual-content-events-copyright-law.
[3] See 17 U.S.C.A. § 106 (1976).
[4] 17 U.S.C.A. § 107 (1976).
[5] Id.
[6] Id.
[7] Rich Stim, What Is Fair Use?, Stanford University Libraries, https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ (last visited Sept. 16, 2020).
[8] Michael Rougeau, Is Streaming Movies to Friends Through Discord and Zoom Legal?, GAMESPOT (May 1, 2020, 9:53 AM), https://www.gamespot.com/articles/is-streaming-movies-to-friends-through-discord-and/1100-6476735/.
[9] Id.
[10] ZOOM, Terms of Service, (Aug. 20, 2020), https://zoom.us/terms.
[11] ZOOM, Copyright (DMCA) and Trademark Takedowns, (Sept. 2020), https://zoom.us/docs/en-us/takedowns.html.
[12] Brandon Katz, Entertainment Industry Staring at $160B Loss Over 5 Years Due to COVID-19, Observer (May 21, 2020, 11:07 AM), https://observer.com/2020/05/coronavirus-film-tv-160-billion-loss-covid-pandemic/.
[13] August Brown, Concert Industry Could Lose $9 Billion This Year Due to the Coronavirus Pandemic, L.A. Times (Apr. 6, 2020, 12:20 PM), https://www.latimes.com/entertainment-arts/music/story/2020-04-06/concert-industry-lose-9-billion-coronavirus.
[14] Cooper Levey-Baker, Covid-19 is Fueling America’s Loneliness Epidemic, Sarasota (Sept. 15, 2020, 1:11 PM), https://www.sarasotamagazine.com/health-and-fitness/2020/09/covid-19-loneliness.
[15] Diana, Gordon, Guest Column: The Challenges of Remote Teaching During COVID-19, The Suffolk Times (May 2, 2020), https://suffolktimes.timesreview.com/2020/05/guest-column-the-challenges-of-remote-teaching-during-covid-19/.
[16] See 17 U.S.C.A. § 107 (1976).
[17] Jaliz Maldonado, Are Copyright Laws Outdated? The Challenges of the Digital Age, National Law Review (Mar. 16, 2019), https://www.natlawreview.com/article/are-copyright-laws-outdated-challenges-digital-age
[18] Klaris, supra note 2.
[19] Nick Statt, Instagram Makes it Easier to See When You’re Broadcasting Music You Can’t Use, The Verge (May 20, 2020, 7:00 PM), https://www.theverge.com/2020/5/20/21265620/instagram-music-copyright-notification-licensed-update-guidelines.
[20] Id.
[21] Klaris, supra note 2.
