Re: Fair use (again!)

Jan Abeita (jabeita@eou.edu)
Tue, 27 Nov 2001 12:10:50 -0800 (PST)

Re: Fair use (again!)We try to stick to the "no more than 10% of a body of
work" rule when it comes to photocopying items for reserve use. Would the
10% rule apply to media as well...under "fair use" guidelines? Jan

----- Original Message -----
From: Lisa Livingston
To: Multiple recipients of list
Sent: Tuesday, November 27, 2001 11:49 AM
Subject: Re: Fair use (again!)

The Fair Use Guidelines for Educational Multimedia exist - are alive and
well - and are used by loads of educators and students. They do not have the
force of law - NONE of the sets of guidelines do. They were not designed
to. However, they do help individuals navigate thru fair use in multimedia
situations. Use them or choose not to. They are meant to GUIDE.

The bottom line is that compiling clips of Saving Private Ryan is creating a
derivative work. If compiling such a large # of clips isn't troublesome to
the compiler, then it is that individual's decision. The Fair Use
Guidelines for Educational Multimedia states, "Uses that exceed these
guidelines may or may not be fair use." However, 35 mins seems a bit much.
More of a concern is placing the derivative work on reserve. That seems to
stretch the Fair Use Doctrine to me.

Lisa

Kris,
I would have to say that our university legal counsel also agrees with you
and yours on this point.

At 03:03 PM 11/26/2001 -0800, you wrote:
This is why our lawyers forbid us to use fair use guidelines, including
the "Fair Use Guidelines for Educational Multimedia" cited below. They do
not have the force of law and they encourage people to treat them as
though they do. They encourage thinking in quotas. Our attorneys believe
them to be entirely too restrictive. Even if I thought that making a
compilation tape from _Saving Private Ryan_ exceeds the boundaries of fair
use, I wouldn't make my decision based upon these guidelines.

I agree with Jane Agee's interpretation. No one is creating a derivative
work. The professor is just trying to create a more effective classroom
teaching tool. Take a look at the four tests of fair use:
http://www.iupui.edu/~copyinfo/sec107.html. Go to #4, "the effect of the
use upon the potential market for or value of the copyrighted work." Is
the instructor's use really having a negative impact on "the potential
market for or value of the copyrighted work?" Could the professor buy a
tape with the clips? License the clips individually? I think not. I
wouldn't worry about this tape for a minute. -- Kris

On Mon, 26 Nov 2001, Marilyn Huntley wrote:

> Once upon a time there was a set of Fair Use Guidelines, presented by the
> CCUMC in 1996. Do they still apply? If they do (and I sincerely hope so,
> because we still quote them as a weapon against faculty and student misuse
> of copyrighted media), then there are several sections that fit what
> Barbara is asking about. Go to any of these websites:
> http://www.libraries.psu.edu/mtss/fairuse/guidelinedoc.html
> http://www.indiana.edu/~ccumc/mmfairuse.html
> http://www3.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm
> http://www.adec.edu/admin/papers/fair10-17.html
> http://www.tifb.state.tx.us/training/fairuse.htm
> http://www.washington.edu/classroom/emc/fairuse.html
> http://www.id.ucsb.edu/detche/library/www/fairuse.html
>
>
> In the Fair Use Guidelines it says that "preparation of educational
> multimedia projects using portions of copyrighted works" may be done
> without permission "By Educators for Curriculum-Based Instruction" [sec.
> 2.2]. These projects may be used for "face-to-face instruction" and
> "assigned to students for directed self-study" [sec. 3.2.1 and 3.2.2].
>
> There are Limitations. For Motion Media, "up to 10% or 3 minutes,
whichever
> is less, in the aggregate of a copyrighted motion media work may be
> reproduced or otherwise incorporated as part of an educational multimedia
> project" [sec. 4.2.1]. They define "in the aggregate" as meaning "the
total
> amount of copyrighted material from a single work that is permitted to be
> used... under these guidelines... These limitations apply cumulatively to
> each educator's... project(s) for the same academic semester... or term"
> [sec. 4].
>
> And there are Copying and Distribution Limitations: "only a limited number
> of copies, including the original, may be made of an educator's
educational
> multimedia project; for all of the uses permitted... there may be no more
> than two use copies... one of which may be placed on reserve..." [sec.
4.3].
>
> Also, here's an interesting Important Reminder: "educators... are advised
> that they must include on the opening screen of their project and any
> accompanying print material a notice that certain materials are included
> under the fair use exemption... and have been prepared according to the...
> fair use guidelines and are restricted from further use" [sec. 6.3].
>
>
> So, if we believe the CCUMC's Fair Use Guidelines are still current, then
> Barbara's profs' use of 35 minutes of clips from a single movie would be
> way more than the permitted "3 minutes, in the aggregate."
>
> I hope this helps!
> Marilyn Huntley
>
> At 10:27 AM 11/26/01 -0800, you wrote:
> >Hi:
> >
> >I know we've been down this road before, but I thought I'd check with you
> >before replying to one of our profs who wants to use a total of 35
minutes
> >of taped excerpts from Saving Private Ryan (169 min.) in face-to-face
> >instruction. The longest of the 7 clips is 8 min., the shortest is just
> >over 2 min. Where he got the original tape from which to take the
excerpts
> >is unknown. Any copyright problem with doing this? What if he then
puts
> >the tape of clips on reserve in the library for his students to use for
> >review/study/assignment purposes?
> >
> >Thanks.
> >
> >Barbara
> >
> >
> >--
> >Barbara Black
> >Video Library
> >Information Technology Services
> >University of Colorado at Boulder
>
>
> ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
> Marilyn B. Huntley, Audiovisual Assistant
> Audiovisual Classroom Services
> 408 Christian A. Johnson Hall
> Hamilton College, 198 College Hill Rd., Clinton, NY 13323
> Phone 315-859-4120; Fax 315-859-4687
> e-mail mhuntley@hamilton.edu

Kristine R. Brancolini, Director, Digital Library Program
Main Library E170, 1320 E. Tenth Street
Indiana University, Bloomington, IN 47405
Phone: 812.855.3710 | Fax: 812.856.2062 | Web: www.dlib.indiana.edu

Karen C. Driessen, Director Phone: 406-243-2856
Instructional Media Services FAX: 406-243-2689
32 Campus Drive #4968 E-mail: karend@selway.umt.edu
The University of Montana
Missoula MT 59812-4968

--

Lisa Livingston Director, Instructional Media Development School of Education, University of Wisconsin 1025 West Johnson Street, Suite 142 Madison, Wisconsin 53706 V:608.262.3431 F:608.262.6447 lmlivingston@facstaff.wisc.edu