Re: Fair use (again!)

Jeffrey Clark (clarkjc@jmu.edu)
Tue, 27 Nov 2001 13:12:23 -0800 (PST)

Well, colleagues, let me chime in here at the last moment as I'm finally
catching up on email upon returning to the office. (I've had a long delay
in finishing this message, and haven't seen any developments in the
exchange that may have occurred since the ones I refer to below.)

I'm inclined to agree with the liberal approach taken by Kris and
Karen--despite being involved in CCUMC, which spearheaded development of
the educational multimedia guidelines referred to.

But I'd point out the following:

1. Yes, the guidelines are not law. Using them is a prerogative, and they
are not a surefire defense against litigation if you were challenged by an
organization who doesn't subscribe to them. Then they might be a good-faith
help in your case--but in any case, the conservative "quotas" outlined
aren't likely to draw much legal ire except from the irrational.

2. HOWEVER... whether the guidelines encourage quota-thinking, is debatable
as far as I'm concerned. You'll note that the guidelines (and their
signatories) clearly indicate that they consider the recommendations to be
fair use--but they don't categorically indicate that beyond-quotas use is
un-fair. To quote the Introduction in part: "Uses that exceed these
guidelines may nor [typo!] may not be fair use. The participants also agree
that the more one exceeds these guidelines, the greater the risk that fair
use does not apply." That's it, period. Myself, I don't subscribe to the
slipperyslope theory that if you abide by them in one situation where
they're useful, you can't ever again think outside the box. Or at least
read them more liberally.

3. Furthermore, I'd argue that in the case of Barbara's film clips
compilation, it may not even fit the guidelines' implicit definition (it's
not really defined outright, I think) of an "educational multimedia
project". I would take that to mean normally involving the use of more than
one medium and/or source at a time in some integrated fashion to constitute
a "project". But if you agree with me, this still leaves you looking for
fair use guidance elsewhere--or just making judgments of your own according
to the four fair use factors alone.

4. I'm sensitive to Milos' caveat about artistic integrity in a case like
this. But also, inclined to be realistic. No artist gets exactly what he or
she wants. We can't even guarantee that when you see a film in a theatre,
you won't vacate for a few moments to the restroom or concession stand--and
that's a violation too. Not to mention home-viewing habits. (And despite
any compromise in the viewing, the original remains always, for reference
by those desirous of or directed to pursue its entire sense at a later
time.) As someone else says, a film may be examined for editing techniques,
or other reasons than its integrated dramatic content, too. I think it's a
losing battle, and a not quite fair one, to hinge any fair use application
of this type on whether you're violating the artist's integrity.

5. I also don't think that a set of film clips from one movie is really a
"derivative work" in the spirit of what that term means. Doing so would
have to hinge merely on the threshold of quantity: use so much film, and
you've suddenly passed a magic mark and gone derivative instead of fair
use. On the other hand, if the amount of the clips used didn't matter...
then wouldn't most "fair uses" actually be fostering the creation of
derivative works? In short, I don't think this interpretation reasonably
applies.

6. And finally... a curious and lengthy sidenote, in support of the idea of
considering fair use that involves copying more flexibly. I've been
reviewing the copyright literature recently, and was reminded of something
I'd forgotten in the Ray Patterson & Stanley Lindberg book (Copyright: a
law of users' rights). The 1976 wholesale revision of copyright law, which
codified fair use for us, did some real disservices too. Among them was
Congress' fatally sloppy conflation of a publication right and a right to
"copy"--which has now become part of the copyright holder's basic rights.
This is in direct conflict with the underlying philosophy of copyright:
copyright inheres in the work, not in its physical embodiment. The right to
publish is part of controlling distribution under copyright... but it
should not have been extended to control of all possible further copying
done with a legitimately published, and owned, copy of the work. This is
where fair use provisions should control, through the user of the work,
what gets done responsibly with the legitimate published copy. And here the
fair use provisions, especially the market impact one, apply to contain
irresponsibile behavior. That should be the controlling mechanism on what's
reasonable--not that if whatever's done involves a copy process, you've
automatically broken the law. That's as bad as the DMCA section 1201 we're
having so much trouble with these days (i.e., making it outright illegal to
bypass access control mechanisms for any purpose).

If this problem between copyright and copy hadn't occurred, Barbara's use
would probably have been reasonable. And routine. (I'm assuming the prof
has a legit original that the library or media center might warehouse.)
Transmission of our legit collection copies via closed circuit to specific
classrooms would probably have been reasonable without side agreements with
publishers--we wouldn't need the hangup on the technology and the act of
temporary conversion over wires. Other transfers of format, to meet
available technology for classes, if done from legit copies and controlled
so there wasn't dual circulation, would probably be reasonable. Even
foreign standard videos--since WIPO is bound and determined to give us One
World Order on the IP front and this one effect might be a benefit instead
of a burden for a change. ;) Preservation efforts would be a whole lot
easier, too.

But remember, by proposing something here that may sound uncomfortable and
even a bit horrifying to some of you on list, I'm thinking primarily of us
service organizations in education who act responsibly, and whom most of
our "perhaps more lax?" clients would normally work through anyway. Private
users, and any organized criminal element beyond them, would do what they
always do, regardless of how the law is worded: if they're going to flaunt
it, they will unless you can literally and physically/technologically
prevent them. The irony in all of this just occurred to me. It's like the
old argument against gun control: "If you take our guns away, then only
criminals will have guns." Copyright abusers will also have whatever they
want, no matter how the law is worded to distinguish or not distinguish
copyright from copy. But by doing something like unnecessary gun control in
hanging us all up on a prohibition from the very act of copying at all,
educators--who have a real, vital and socially beneficial function to
address in their use of intellectual property--have been put in the
position of those without guns. Or without enough of them.

Sorry... you may fire away now. I'm testing for reactions. ;)

Jeff

--On Monday, November 26, 2001 3:03 PM -0800 "Kristine R. Brancolini"
<brancoli@indiana.edu> 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
>

**********
Jeff Clark
Director
Media Resources (MSC 1701)
James Madison University
clarkjc@jmu.edu
540-568-6770 (voice)
540-568-3405 (fax)