Webcasting in the Time of COVID-19: Copyright Implications of Remote Worship & Distance Learning

Webcasting in the Time of COVID-19: Copyright Implications of Remote Worship & Distance Learning

Legal Sidebari

Webcasting in the Time of COVID-19:
Copyright Implications of Remote Worship &
Distance Learning
April 3, 2020
Unauthorized public performance or display of a copyrighted work generally gives rise to liability for
copyright infringement; however, current law exempts certain activities from infringement when
performed in person. For example, singing a copyrighted hymn or performing a religious work during a
religious service at a place of worship is exempted from infringement liability, as is the performance or
display of a copyrighted work by an instructor while teaching in the classroom.
As a result of the COVID-19 social distancing policies, however, groups have begun webcasting what
were previously in-person gatherings. (“Webcasting” is the practice of broadcasting an event live over the
internet.) Places of worship may webcast their usual religious services. Schools and universities may
webcast classes. Copyright law, however, treats transmissions like webcasting differently than in-person
activities in some circumstances. Thus, certain activities generally exempt from copyright liability when
performed in person may be infringing when they are transmitted or webcast over the internet. This
Sidebar provides a background on copyright law before outlining possible approaches to exempting
transmission of these events from copyright infringement liability.
Legal Background
A copyright gives its owner the exclusive right to take or authorize certain actions involving the
underlying work. Specifically, the copyright owner has the exclusive right to, among other things,
reproduce or distribute the copyrighted work, or perform or display the copyrighted work publicly. If any
person violates the copyright owner’s exclusive rights (for example, by performing the copyrighted work
publicly without the owner’s permission), then that person has infringed the copyright.
A person held liable for copyright infringement may be subject to a court order to stop infringing (an
“injunction”) or may be required to pay damages. The amount of damages may be both the copyright
owner’s actual damages and any profits made by the infringer, or an amount set by statute (“statutory
damages”). Statutory damages may be set between $750 and $30,000 “as the court considers just,” but
may be increased if the infringement was willful. The prevailing party in an infringement action may also
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be able to recover its attorney’s fees. In certain circumstances, copyright infringement may even be a
criminal offense.
Congress has exempted certain actions from copyright infringement in 17 U.S.C. § 110 (§ 110), as well as
in other provisions such as the one governing “fair use” (discussed below). In § 110, Congress created a
list of acts that it explicitly defined as not infringing the copyright owner’s exclusive rights,
notwithstanding that those actions involve using copyrighted works in a way that would ordinarily
infringe. As explained below, two of those exemptions relate to in-person teaching activities and religious
assemblies.
Remote Worship
A copyright owner has the exclusive right to display or perform a work publicly. Ordinarily, that right
would cover the performance of a copyrighted work (for example, performance of a copyrighted hymn)
during a religious service. However, Congress included an exemption as part of the Copyright Act of
1976 (“1976 Act”). Under § 110(3), “performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of
worship or other religious assembly” is not copyright infringement.
Technology has advanced since 1976, however, and in ways that the exemption’s drafters may not have
foreseen. The decision of many religious institutions to webcast services to avoid contagion and comply
with state and federal directives raises the question whether the § 110(3) exception applies when religious
services are transmitted to online viewers. As a statutory matter, this hinges on whether a webcast
performance or display could be said to occur “in the course of services at a place of worship or other
religious assembly.” It could be argued, for example, that a webcast of a religious service is a “religious
assembly” within the meaning of the statute.
The relevant legislative history and case law, however, does not appear to support reading § 110(3) to
apply to webcast or transmitted religious services. The House of Representatives Judiciary Committee
Report on the 1976 Act (“1976 Act Report”) supports the conclusion that Congress intended the
exemption to be read narrowly. For example, the exemption is not intended to include secular works
“even if they have an underlying religious or philosophical theme,” and would not include works
performed “for social, educational, fund raising, or entertainment purposes” (although, the 1976 Act
Report notes such purposes might be covered by other exemptions). Moreover, the 1976 Act Report states
that the exemption does not “extend to religious broadcasts or other transmissions to the public at large,
even where the transmissions were sent from the place of worship.” This particular statement would seem
to preclude extending § 110(3) to webcasts or other transmitted religious services; indeed, one court relied
on this language to determine that the exemption does not apply to radio broadcasts of religious services.
Thus, § 110(3) seems unlikely to apply to works performed during webcast or other transmitted religious
services.
Distance Learning
The copyright owner’s exclusive rights generally apply, absent other provisions, to the use of copyrighted
material in the classroom. Again, the 1976 Act includes an exemption for certain teaching activities.
Under § 110(1), performance or display of a work by instructors or pupils during “face-to-face teaching
activities of a nonprofit educational institution” in a classroom or similar place is not infringement. (The
sole exception is when the work is a copy of a movie that the instructor knows or should have known was
illegally made.) The 1976 Act Report clarifies that this exemption applies to performances or displays
made “in the course of instructional activities other than educational broadcasting,” and “embrace[s]
instructional performances and displays that are not ‘transmitted.’” The 1976 Act Report further clarifies

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that the exemption applies to display of a work “by means of any sort of projection device or process,”
but only “[a]s long as there is no transmission beyond the place where the copy is located.” Accordingly,
§ 110(1) would not apply to performance or display of a work that is webcast or transmitted to students.
Another exemption is specifically directed at distance learning. Passed as part of the Technology,
Education, and Copyright Harmonization Act of 2001 (“TEACH Act”), § 110(2) applies to transmitted
performances or displays if certain conditions are met, and with certain exemptions. Specifically, the
TEACH Act only applies if:
1. “the performance or display is made by, at the direction of, or under the actual supervision of an
instructor as an integral part of a class session offered as a regular part of the systematic mediated
instructional activities”;
2. “the performance or display is directly related and of material assistance to the teaching content
of the transmission”;
3. the transmission is made solely for and reception is limited to “students officially enrolled in the
course for which the transmission is made” or “officers or employees of governmental bodies as a
part of their official duties or employment”; and
4. “the transmitting body or institution” provides materials and has in place policies that promote
compliance with the copyright laws, provides notice that the materials used in the course may be
protected by copyright, applies measures that prevent recipients from retaining the transmission
past the end of the class session or further distributing the work, and does not attempt to interfere
with the copyright owner’s protection of the work.
In contrast to § 110(1), the TEACH Act specifically applies to distance learning and might apply to
certain webcasts. However, in light of the TEACH Act’s specific requirements, it would likely not apply
to many webcast or transmitted educational activities occurring as a result of the COVID-19 pandemic.
For example, instructors may not be able to transmit sessions with “measures that prevent recipients from
retaining the transmission past the end of the class session or further distributing the work.” It may also be
difficult to limit reception of a session solely to “students officially enrolled in the course for which the
transmission is made.” Moreover, if the transmitting body or institution does not already have in place
materials and policies that promote copyright compliance, it may be difficult for the institution to create
the materials during the pandemic.
Fair Use
In addition to the specific exemptions that appear in § 110, the “fair use” of a copyrighted work, codified
at 17 U.S.C. § 107, is not infringement. Fair use includes uses “for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The
statute directs that in considering whether a particular use of a copyright is fair, courts should consider
four nonexclusive factors:
1. “the purpose and character of the use, including whether such use is of a commercial nature or is
for nonprofit educational 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 effect of the use upon the potential market for or value of the copyrighted work.”

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The determination whether a particular use of a copyright is fair is often fact-intensive, and will typically
depend on the specifics of how and why the copyrighted work is used. Under current law, an accused
infringer bears the burden of establishing fair use. Thus, the success of a fair use defense to a copyright
infringement lawsuit can be an uncertain prospect for an accused infringer. On the other hand, fair use is a
highly flexible doctrine that has been extended to uses that the 1976 Act’s drafters may not have
anticipated, such as mass digitization of books for search purposes.
Given the fact-intensive nature of the fair use inquiry, it is difficult to generalize as to whether this
doctrine may protect webcast religious services and educational activities. The analysis would depend on
the details of the use at issue. It is also unclear how the present circumstances surrounding the COVID-19
outbreak would affect the fair use analysis, if at all. An accused infringer (for example, a teacher or
professor accused of infringement for use of a work during a webcast class) might argue that the COVID-
19 pandemic should be considered as part of “the purpose and character of the use” when webcasts have
replaced face-to-face gatherings for public health reasons. Whether such an argument would succeed is
yet to be seen.
Implications for Congress
Congress could approach the copyright issues surrounding remote worship and distance learning in a
number of ways. One option would be to maintain the legal status quo. There are existing services that
sell licensing bundles for churches to obtain permission to use certain copyrighted works. As discussed
above, webcasters could rely on the existing fair use defense and specific exemptions for some uses. As a
practical matter, copyright holders may be reluctant to sue educational or religious institutions for
infringement, for public relations and other reasons.
Congress could also make the fair use provision easier to employ. For example, Congress could broaden
or remove one or more of the factors considered when determining whether a particular use of a
copyrighted work is fair. Congress could also legislate to place the burden of proof on the copyright
owner, rather than on the religious or educational institution, in fair use cases.
Another option would be to amend or add to the existing protections in § 110. For example, the classroom
exemption in § 110(1) and worship exemption in § 110(3) could be amended to include performance and
displays transmitted over the internet, or the requirements to fall within the coverage of the distance
learning exemption in § 110(2) could be changed. This would not be the first time that the § 110
exemptions have been amended to address challenges introduced by new technology.
The House of Representatives Judiciary Committee Report for the TEACH Act (“TEACH Act
Report”) argued that the prior language of § 110(2) was “inapplicable to the most advanced
delivery methods for instruction.” “Without an amendment to accommodate these new
technologies,” the TEACH Act Report concluded, “the policy behind the 1976 act would be
increasingly diminished.” Congress could use the same rationale to justify modification of the
existing exemptions in § 110. Moreover, Congress could render any amendments to the § 110
exemptions temporary by, for example, having them expire on a particular date or when the
current national emergency ends.

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Author Information

Kevin T. Richards

Legislative Attorney

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