Re: [Videolib] Copyright update

M. Troy Davis (tdavis@email.lib.utk.edu)
Wed, 28 Apr 2004 08:04:01 -0400 (EDT)

Dear Jessica and others,

Let me preface my lengthy response with this: this is a great
conversation. I dig it! I hope "new" members perceive it as an important
discussion and that being an expert is not a prerequisite for
understanding and following the law. And for new members, welcome to one
of those hot-topics. I'm not an expert, but I don't have to be and neither
do you!

>> Well, my first thoughts are that your specialist is, again, with all due
>> respect, wrong. Section 108(i) does indeed bar copying, for a patronšs
>> private study or for interlibrary loan, of a musical work, a pictorial,
>> graphic or sculptural work and an audiovisual work or motion picture.
>> Section 108 however places NO limits on the types of works that can be
>> copied for preservation purposes. In fact, three copies can be made,
>> and one of Œem can be digital.
>
> Well you lost me there as it does exclude motion pictures.
> This person in fact an expert in this and much as I post I am not
> He had always told me that this section was for audio but frankly I never
> followed it. From a logical point of view do you really think major rights
> holders like studios would permit copying of their feature films onto DVD
> just because your old video is deteriorating? If you don't think they
> rule the roost on this check out the 20 year extension they got Congress
> to
> pass.

That's great he's/she's an expert; too bad he's/she's not right. All
types of works may be reproduced and distributed in accordance with the
preservation subsections of 108. The DMCA amended section 108 so that
libraries are permitted to make 3 copies of a copyrighted work and one of
them can be digital. Are we reading the same statute?

It's interesting that if you admit not following the letter of the law
that you're so quick to call particular activities infringing.

These so-called rightsholders do indeed rule the roost, but that doesn't
mean that user rights can't and shouldn't be argumentatively established
as well. Kahle v. Aschcroft is just such an attempt.
http://cyberlaw.stanford.edu/about/cases/kahle_v_ashcroft.shtml

> As for "preserving" a deteriorating item, preserving for whom ? It is the
> nature of the beast that books, videos, dvds eventually will deteriorate
> Unless you have reason to believe you possess THE ONLY KNOWN COPY of such
> a
> work this argument does not hold ( and if you think it is a unique copy
> PLEASE contact the Library of Congress ASAP).

>From a logical point of view, no I don't think that "major rightsholders
like studios" would permit such preservation copying. But determining
appropriate uses of copyrighted works doesn't require a positive answer to
that question. The point of that part of the statute we've been discussing
is that libraries and archives can, under certain conditions, reproduce a
work (yes, yes, this is an exclusive right granted to the rightsholder).
Section 108 permits libraries to reproduce (even make a digital copy!) of
a copyrighted work without permission for preservation purposes. So from
a logical point of view, one could argue that no, major rightsholders like
studios would not permit such reproduction. But from a legal point of
view, there is no requirement that libraries need their permission to do
so. So, there are exemptions. This thread just points out one type of
exemption, section 108 (there's still the fair use exemption of 107), and
the right to reproduce published and unpublished works for preservation
purposes (under certain conditions). The point: studios aren't the only
"major rightsholders" that copyright law defines. Copyright law also
contains some principled declarations of user rights as well, not just
creator rights, or in the case of publishers and distributors,
entrepreneurial rights. In order to promote the advancement of
knowledge, the law attempts to balance these rights relative to the use of
a particular work. A fair use could then be broadly defined as a use that
promotes knowledge AND does not inhibit the commercial gain of the
publisher/creator.

Preservation for whom? I can't say for sure, I didn't write the statute,
and as far as I can tell, the "for whom" would require us to figure out
the intent of Congress. I would assume they meant "the public." Section
108 is in many ways an acknowledgment that libraries should legally be
able to reproduce works that they feel are somehow vested with a public
interest; that libraries not only provide access, but must be allowed to
preserve access, for present and future "publics."

The statute doesn't require a demonstration of holding the only known copy
of a work in order to reproduce it. And yes, all matter ultimately breaks
down, that's why deterioration (undefined in the statute) is listed as one
of the motivations for library reproduction.

>
> Much of this boils down to cost & convenience. 16mm, & video are no longer
> convenient formats and many materials bought years ago are in bad shape
> This is unfortunate but legally it does not entitle you to make a digital
> copy.
>

As a manager of a media collection, I would much rather purchase a new
16mm print or DVD or VHS of a deteriorating 16mm film than try to digitize
or convert it. It would be alot cheaper. And yes, section 108 allows
libraries and archives (under certain conditions) to make 3 copies, one of
them being digital; its not about convenience, but preservation; it can
be called unfortunate, unfair, or whatever, but there's no reason to
re-criminalize what the statute clearly de-criminalizes (reproducing
copyrighted works). Now it's likely that your company could not do the
same per se under section 108, but just as all "educational" use isn't a
legal use, one could argue that not all commercial reproduction is an
infringement. (there are other exemptions you could try for, section 107
for example) I don't know..again if you were sued there would be
particular litigants, a particular work would be involved, particular
presentation of particular facts, etc...

>
>
> I know I SEEM like the big bad wolf on this but I am usually very
> accommodating on rights & materials, however as a representative of a
> distributor I worry about the ease with which people will justify copying
> copyrighted material.My company has lost the rights to hundreds of films
> over the years many of which may never reappear in film, video or DVD
> does this mean that a library can make a DVD when the owner will not even
> allow it to be distributed in the US ?
> I DO understand it is frustrating when a a title you have used in the past
> is no longer available but it happens and you can't just make copies
> because a professor is going to be VERY upset. Researchers are free
> to go to Library of Congress and other archives to see and research films
> but there is no right to show every film ever released on 16m or video in
> your class or have your library.

I don't think you're the big bad wolf, and I can feel your pain about your
company's loss of rights. I'm sorry to hear that. Your company is
necessarily concerned with its commercial uses of copyrighted works, which
gives you a different perspective on copyright for sure. Section 108 may
be unfortunate for some, but as a librarian and a user of libraries, I
just don't see it that way. And you're right, there should never be some
casual (read: uninformed or bad faith) justification made for the
duplication of copyrighted works. Why? Because there doesn't have to be.
Reproduction of copyrighted works is a legal activity (under certain
conditions). Period.

I tell everyone to assume you'll get sued. Why? This will make them think
twice about some muddy-watered defense of "educational use" and force them
read the statute carefully, document any activity relating to their
efforts to fulfill statutory requirements, and in the end, have a well
prepared constellation of facts (not opinions) relating to the
reproduction. If sued, well, you may lose or win, but your sure to lose if
your justification for reproduction is made outside a good faith effort to
understand and properly and ethically apply exemptions.

It doesn't matter if professors get upset. The original post was a query
about preservation copying, I believe. My advice, read the statute!

Some random statements:
http://www.copyright.iupui.edu/digpreserv.html
http://www.utsystem.edu/ogc/intellectualproperty/dmcalib.htm
http://www.library.ucla.edu/text/copyright/replace.html

Best,
Troy

>
> Jessica Rosner
> Kino International
> 333 W 39th St. 503
> NY NY 10018
> jrosner@kino.com
> 212-629-6880
>
>
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