Re: copyright question

Jeffrey Clark (clarkjc@jmu.edu)
Fri, 28 Feb 2003 13:39:31 -0800 (PST)

I think that two ideas/provisions are being conflated here in the comments
below:

1. The newly passed TEACH Act deals with distance education, and will be
incorporated into sec. 110(2) and (I believe, without checking) sec. 112. I
haven't found a source online that has updated those sections yet (e.g.,
the Cornell site at: http://www4.law.cornell.edu/uscode/17/).
TEACH permits the digitization of a work when no digital version is
available for DE purposes, or when that version may be access-protected in
a way that conflicts with its use over a digital network. HOWEVER, TEACH
only authorizes DE distribution of "reasonable portions" of video and other
av works that most of us are dealing with on this list. Not the whole
film/program/work.

2. The Sonny Bono Copyright Term Extension Act (CETA) has a provision for
digital copying of unreplaceable/obsolete format works that's incorporated
into section 108, dealing with library and archive rights. I've reproduced
the relevant clause below. This allows up to 3 copies of works meeting
these general criteria--but prohibits distribution beyond the physical
premises of the library/archive if the copy is a digital one. Thus it
doesn't even enter TEACH territory....
...But it bring up an interesting point: Could these measures complement
one another, and yet conflict at the same time? If you make a legit copy of
a work o.p. or obsolete, under the CETA measure, it should have the same
legal status as the deteriorated/o.p./obsolete-format original. Does it
then become eligible for digitizing for DE purposes under TEACH--that is,
digitizing in portions only--since it's commercially unavailable at a fair
market price? And if so... isn't it then in conflict with the CETA/sec. 108
provision that digital copies made under it cannot be distributed beyond
the library/archive?
Hmm... The sound of one hand clapping again in my head. Let me stop here
and give you the text from Title 17, section 108, subsec. c:

"(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."

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

--On Friday, February 28, 2003 12:53 PM -0800 Ben Achtenberg
<Ben@fanlight.com> wrote:

> I would appreciate the citation of the copyright section which authorizes
> the making of a digital copy for the purpose you describe. 110 ain't it.
>
> Ben Achtenberg
>
>
> At 12:04 PM 2/28/03 -0800, you wrote:
>> --=====================_24918818==.ALT
>> Content-Type: text/plain; charset="iso-8859-1"; format=flowed
>> Content-Transfer-Encoding: quoted-printable
>>
>> Except....I bet this gets something started...
>>
>> (Primarily, for Distance Education and Digital Video delivery)
>> The institution may convert from analog to digital the portion or amount
>> of= =20
>> that work authorized
>> to be used under Section 110(2) if:
>> =B7 no digital version of a work is available to the institution or
>> =B7 the digital version that is available is subject to technological=20
>> measures that prevent its
>> use for distance education
>>
>> Basically, if you need a DIGITAL version for Educational use (i.e.
>> meeting= =20
>> all the criteria for that part of the Code) you can convert, but only
>> if=20 you cannot purchase it from the owner in a digitized format. You
>> really=20 don't want to do the digitization if you don't have to, but
>> you can if it=20 is not available.
>>
>> You are right, though, in that a TAPE would be illegal.
>
> Ben Achtenberg / Fanlight Productions
> 4196 Washington Street, Boston, MA 02131
> (617) 469-4999 Fax: (617) 469-3379
> Email: Ben@Fanlight.com
>
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