Re: Copyright

Jeffrey Clark (clarkjc@jmu.edu)
Mon, 21 Oct 2002 11:58:49 -0700 (PDT)

Folks,

Here are the relevant subsections of Title 17, section 108: -b, c & i.

(b)

The rights of reproduction and distribution under this section
apply to three copies
or phonorecords of an unpublished work duplicated solely for purposes
of preservation
and security or for deposit for research use in another library or
archives of the type
described by clause (2) of subsection (a), if -

(1)

the copy or phonorecord reproduced is currently in the
collections of the library
or archives; and

(2)

any such copy or phonorecord that is reproduced in digital
format is not
otherwise distributed in that format and is not made available to
the public in that
format outside the premises of the library or archives.

(c)

The right of reproduction under this section applies to three
copies or
phonorecords of a published work duplicated solely for the purpose of
replacement of a
copy or phonorecord that is damaged, deteriorating, lost, or stolen,
or if the existing
format in which the work is stored has become obsolete, if -

(1)

the library or archives has, after a reasonable effort,
determined that an unused
replacement cannot be obtained at a fair price; and

(2)

any such copy or phonorecord that is reproduced in digital
format is not made
available to the public in that format outside the premises of the
library or archives in
lawful possession of such copy.

For purposes of this subsection, a format shall be considered
obsolete if the
machine or device necessary to render perceptible a work stored in
that format is no
longer manufactured or is no longer reasonably available in the
commercial marketplace.

(i)

The rights of reproduction and distribution under this section do
not apply to a
musical work, a pictorial, graphic or sculptural work, or a motion
picture or other
audiovisual work other than an audiovisual work dealing with news,
except that no such
limitation shall apply with respect to rights granted by subsections
(b) and (c), or with
respect to pictorial or graphic works published as illustrations,
diagrams, or similar
adjuncts to works of which copies are reproduced or distributed in
accordance with
subsections (d) and (e)

--Now, this being the case, preservation reproduction of unpublished or
published av programs (film, video and otherwise) is possible after the
fair market price search for replacement, when format is obsolete... and
(in either of those cases) into another format. The new provision b.2 and
c.2 for how to handle digital-format reproductions (on premises use only)
suggests that other conversions are possible.

There are only two complicating points in the law that I see here:

1. The wording doesn't suggest that fair market search for out-of-print
material and obsolete format determination are two separate issues. They
seem connected--but this makes sense in only one way. If you've got an
obsolete format, why would you want to replace it at any price in the same
format? The interpretation, however, could be that the program may be
available on the market in another usable format. This provision would
prevent automatic transfers of old-format materials into desired format
without buying a copy available in the desired format. But that seems a
roundabout way to express this. Does anyone have another interpretation I'm
missing here?

2. Notice that the condition for preservation reproduction is that the item
be deteriorating at best, lost or stolen at worst. This has always struck
me as nonsensical in a practical way, because almost any of those
conditions could be reason why the item cannot be reproduced for
preservation by the time you're officially able to take action. At least
not from *your* legit copy, if it's damaged enough. The provision seems to
preclude "preemptive" reproduction of titles you know are out-of-print,
can't be had, are valuable... but whether and when they're deteriorating is
sometimes up to individual opinion. Then again perhaps that's the ambiguous
basis on which you can proceed preemptively. Again, any thoughts from
anyone here?

Jeff

--On Monday, October 21, 2002 9:30 AM -0700 Jessica Rosner
<jrosner@kino.com> wrote:

> Yes I would disagree. How in the WORLD could you justify making a VHS
> from a DVD? Also 16mm IS NOT DEAD , just very inconvenient under present
> circumstances. I also would not want to be the party crossing the "fair
> Market " issue?. It was my understanding that section 108 applied to
> RECORDINGS not film . In any event I will try to get
> a friend of mine who really is an expert on this to post ( and he works
> for an archive not a studio)
>
> I suppose it is because I think again in "feature film" terms rather
> than Educational films that I seem so nasty but I can't see ANY
> circumstances where a rights holder would allow you to transfer a 16mm
> FEATURE film to VHS, just because they have CHOSEN not to release it on
> video or DVD. I seriously doubt you would have a chance in court on this.
> As for the educational stuff that may really be "lost" re distribution, I
> am not sure.
>
> FYI the reason I mentioned doing a dilegent search is that the original
> post indicated that if a format were presumed "dead" they could transfer
> it WITHOUT making a search
> --
> Jessica Rosner
> Kino International
> 333 W 39th St. 503
> NY NY 10018
> jrosner@kino.com
>
>> From: Gary Handman <ghandman@library.berkeley.edu>
>> Reply-To: videolib@library.berkeley.edu
>> Date: Mon, 21 Oct 2002 09:15:18 -0700 (PDT)
>> To: Multiple recipients of list <videolib@library.berkeley.edu>
>> Subject: Re: Copyright
>>
>> OK...
>>
>> Ten aftern nine am and I'm weighing in. I think you may be obfuscating
>> things, Jessica.
>>
>> If a library has made a reasonable (well-documented) effort to acquire a
>> replacement of a title that it has legally acquired
>> AND
>> if it has been determined after such a search that the material is not
>> available at fair market price
>> THEN
>> I firmly believe it is reasonable (and within the strictures of current
>> copyright) to make a replacement copy. I also think that in such
>> circumstances making a video copy from a 16mm print or a DVD from a video
>> copy would hold up in court under the current terms of Section 108 of
>> the copyright law.
>>
>> Anyone disagree?
>>
>>
>>
>> At 09:03 AM 10/21/2002 -0700, you wrote:
>>> Ah so early on Monday
>>> Becky
>>> I think there is a key confusion here. You can NEVER transfer WITHOUT
>>> FIRST trying to track down and get permission. You must ALWAYS make
>>> a diligent effort to track the rights holder first. There is NO right
>>> to transfer from an obsolete format just because you want to or it is
>>> more convenient. If for instance you had an old 16mm print of SONG OF
>>> THE SOUTH you know who would sue you ASAP if you tried to transfer it
>>> just because they have DELIBERATLY chosen not to release it and they
>>> own it
>>>
>>> In any case 16mm , IT IS NOT DEAD YET and we still make new prints and
>>> rent our collection widely. I expect it will be MANY years before this
>>> would be a "dead" format.
>>>
>>> I realize that a lot of old educational titles are very hard to find
>>> or track down and my area is pretty much feature films ( which is why
>>> I freak out when someone mentions transferring them) but be VERY, VERY
>>> careful about what constitutes a diligent effort to track the rights
>>> and an obsolete format
>>>
>>> Jessica
>>>
>>>
>>> --
>>> Jessica Rosner
>>> Kino International
>>> 333 W 39th St. 503
>>> NY NY 10018
>>> jrosner@kino.com
>>>
>>>> From: Becky Carolus <rjc@psulias.psu.edu>
>>>> Reply-To: videolib@library.berkeley.edu
>>>> Date: Mon, 21 Oct 2002 08:45:22 -0700 (PDT)
>>>> To: Multiple recipients of list <videolib@library.berkeley.edu>
>>>> Subject: Copyright
>>>>
>>>>
>>>> --Boundary_(ID_yVHvyRQq5sBePtEbRwBkXw)
>>>> Content-type: text/plain; charset=us-ascii; format=flowed
>>>> Content-transfer-encoding: 7BIT
>>>>
>>>> Okay, I'm in need of some clarification here. Penn State also holds a
>>>> large number of titles that are forever out of print, but we've been
>>>> under the assumption that we could not transfer these -- 16mm
>>>> particularly -- to VHS or DVD without tracking down and seeking
>>>> permission from the film maker when the original distributor is no
>>>> longer in business. In addition, we've been under the impression that
>>>> we can't legally transfer from 16mm to VHS in these instance since new
>>>> 16mm equipment is still available for purchase, even though we want to
>>>> move in the direction of no longer support 16mm???
>>>>
>>>> 3/4" is cut and dried, but not 16mm.
>>>>
>>>> If this isn't the case, it will certainly make our lives much less
>>>> stressful in the next year or so.
>>>>
>>>>
>>>>
>>>> Becky Carolus
>>>> Administrative Assistant
>>>> Penn State MediaTech & UCIF
>>>> 203 Special Services Bldg.
>>>> 814-863-3101 / 814-863-3107 (fax)
>>>> rjc@psulias.psu.edu / rjc5@psu.edu
>>>>
>>>> --Boundary_(ID_yVHvyRQq5sBePtEbRwBkXw)
>>>> Content-type: text/html; charset=us-ascii
>>>> Content-transfer-encoding: 7BIT
>>>>
>>>> <html>
>>>> Okay, I'm in need of some clarification here.&nbsp; Penn State also
>>>> holds a large number of titles that are forever out of print, but
>>>> we've been under the assumption that we could not transfer these --
>>>> 16mm particularly -- to VHS or DVD without tracking down and seeking
>>>> permission from the film maker when the original distributor is no
>>>> longer in business.&nbsp; In addition, we've been under the impression
>>>> that we can't legally transfer from 16mm to VHS in these instance
>>>> since new 16mm equipment is still available for purchase, even though
>>>> we want to move in the direction of no longer support 16mm??? <br><br>
>>>> 3/4&quot; is cut and dried, but not 16mm.<br><br>
>>>> If this isn't the case, it will certainly make our lives much less
>>>> stressful in the next year or so.<br>
>>>> &nbsp;<br><br>
>>>> <x-sigsep><p></x-sigsep>
>>>> <font face="Script MT Bold" size=4 color="#0000FF">Becky Carolus<br>
>>>> </font><font size=2 color="#0000FF">Administrative Assistant<br>
>>>> Penn State MediaTech &amp; UCIF<br>
>>>> 203 Special Services Bldg.<br>
>>>> 814-863-3101 / 814-863-3107 (fax)<br>
>>>> rjc@psulias.psu.edu / rjc5@psu.edu</font></html>
>>>>
>>>> --Boundary_(ID_yVHvyRQq5sBePtEbRwBkXw)--
>>
>> Gary Handman
>> Director
>> Media Resources Center
>> Moffitt Library
>> UC Berkeley
>> ghandman@library.berkeley.edu
>> http://www.lib.berkeley.edu/MRC
>>
>

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