Re: Fair use (again!)

Dan Donnelly (d-donn@tc.umn.edu)
Tue, 27 Nov 2001 13:01:36 -0800 (PST)

Lisa,

Is there a difference between using the work and using the copyright in
a work? I think the issue when we're concerned about creating a
derivative work would be that that new work somehow exploits a commercial
market, i.e. it's created and distributed commercially. Isn't the
scenario of a teacher lawfully acquiring an authorized copy of Saving
Private Ryan and then dubbing clips to present in the classroom simply a
use of the work and not a use of the copyright? I would think that sort
of use is one of the uses Fair Use was intended to facilitate.

Placing the resulting video on reserve doesn't seem a problem to me as
long as access to the video is restricted to students enrolled in the
class. My notion here is that the controlled reserve environment is
merely an extension of the classroom and that students may only view the
clips inside the library reserve viewing facility. This may be a stretch
but Fair Use does seem flexible to me.

Dan Donnelly




At 11:49 AM 11/27/2001 -0800, you wrote:

>>>>

<excerpt>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<italic> Saving Private
Ryan</italic> 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

<excerpt>Kris,

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

<excerpt>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.htm >l. 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/fairus >e/guidelinedoc.html

> http://www.indiana.edu/~ccumc/mmfairuse. >html

> http://www3.utsystem.edu/ogc/intellectua >lproperty/ccmcguid.htm

> http://www.adec.edu/admin/papers/fair10- >17.html

> http://www.tifb.state.tx.us/training/fai >ruse.htm

> http://www.washington.edu/classroom/emc/ >fairuse.html

> http://www.id.ucsb.edu/detche/library/ww >w/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

</excerpt>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

</excerpt>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

</excerpt>

Dan Donnelly, Library Manager

Learning Resources Center

University of Minnesota Libraries

612.624.6536 Fax 612.625.2519

mailto:d-donn@tc.umn.edu