Fair Use Guidelines

Deg Farrelly (DEG.FARRELLY@asu.edu)
Tue, 27 Nov 2001 13:08:48 -0800 (PST)

Kris makes a point which illustrates one of the common misinterpretations of
the Fair Use Guidelines for Educational Multimedia. That is, that the FUGEM
provide absolute restrictive portion limitations. They do not.

The FUGEM state that the portion limitations (e.g. 3 minutes or 10%,
whichever is less, of a film) are guidelines that IF adhered to definitely
constitute fair use. BUT the FUGEM also states that if one feels she/he can
make a case of fair use for larger portions she/he may do so... but that one
has to consider and weigh all 4 of the fair use factors. Only the courts
can determine if any particular use falls within fair use.

To add an additional wrinkle, the FUGEM only apply to the creation of NEW
works based on other works. That means, that value is being added. Just
copying clips from one tape to another is not adding value. Adding a
narration, comparison to other scenes in other films, or text from the work
on which a film is based, for example, would constitute adding value.

The need in this case seems to be the convenience of showing the clips to a
class, and later reserve use. But duplicating the clips, in my
interpretation, exceeds reasonable amount.

There are other options.... including purchasing multiple copies of the
video (not an unreasonable expense) and pre-cueing prior to class.

AND the often unconsidered approach..... writing for PERMISSION to make the
copy. (Something that the FUGEM suggests and strongly supports.)

My $.02

deg farrelly, Associate Librarian
Media/Communications Studies/Women's Studies
Arizona State University West
P.O. Box 37100
Phoenix, Arizona 85069-7100
Phone: 602.543.8522
Email: deg@asu.edu

> ----------
>
> Date: Mon, 26 Nov 2001 17:58:05 -0500 (EST)
> From: "Kristine R. Brancolini" <brancoli@indiana.edu>
>
> 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
>