Re: [Videolib] Copyright ( My last word)

Troy Davis (tdavis@email.lib.utk.edu)
Wed, 28 Apr 2004 12:57:01 -0400

This is an interesting conversation because it allows us to articulate
(and ultimately balance) a constellation of rights outlined in the statute.

Section 108 does allow libraries to reproduce copyrighted works (again,
under certain conditions, which have little to do with belief). Your
question is interesting...I've always thought that was rather funny,
libraries are able to reproduce stolen works?? (see an analysis/opinion
of this below).

Ok, I'm not trying to be anthemic or contrary, but here's a respectfully
submitted argument (remember, I'm not an expert!); given that section
110(1) says that the following is not an infringement: "performance or
display of a work by instructors or pupils in the course of face-to-face
teaching activities of a nonprofit educational institution, in a
classroom or similar place devoted to instruction, UNLESS, in the case
of a motion picture or other audiovisual work, the performance, or the
display of individual images, is given by means of a COPY THAT WAS NOT
LAWFULLY MADE UNDER THIS TITLE, and that the person responsible for the
performance knew or had reason to believe was not lawfully made"
(emphasis added)

Didn't we just articulate that copies made under section 108 are in fact
"lawfully made" copies.

So, one could argue that its NOT very clear that copies lawfully made
under section 108 cannot then be performed or displayed under the
conditions of 110(1).

It IS unfortunate that there's no statutory definition for
"deteriorating," and "fair price." There is for obsolescence...and
according to the definition, 16mm and VHS are not obsolete.

And finally, if all the conditions of the statute are met, then yes,
reproducing copyrighted works is lawful.

And for the record, I appreciate your candor and the great job you do!
We should all worry about the slippery slope and we can at least make
every attempt to avoid it by doing our best to understand the law, and,
extending, as you suggest, common courtesies to rightsholders if necessary.

Best,
Troy

Here's an analysis from Kenneth Crews....
http://www.dml.indiana.edu/html/crews-sec108/section108overview.html
"Consider again the vinyl LP. The library will need to evaluate the work
to determine that in fact it is "deteriorating" and then conduct an
investigation of the market to affirm that an unused replacement is not
available. The language of these provisions leaves much for the library
staff to evaluate without further guidance from the law. Neither the
statute nor any judicial decision defines the meaning of
"deteriorating," so the library must reach its own conclusion about the
condition of the work and the defensibility of that conclusion. The wear
and distortion on the LP may well be grounds for deeming the work
"deteriorated," and the library should document the condition of the
original and maintain records to justify the conclusion, should its
actions ever by questioned.

Similarly, the statute makes clear that the library need only search for
an "unused" replacement and thus need not search the secondary markets,
but the law does not clarify the meaning of a "fair price." The library
staff will need to make a judgment in light of customary prices for
similar works. Moreover, the notion of a "replacement" can be
complicated. Researchers may want only an analog recording, while a
digital version on CD-ROM might be readily available for purchase.
Whether the CD is in fact an available "replacement" for the LP probably
depends on specific needs of the library and its users and whether the
CD can be satisfactory, or if a copy of the analog version is necessary.
In all of these instances, the statute ultimately calls on the library
to evaluate circumstances reasonably and to justify the decisions.

Jessica Rosner wrote:

> Well after two Cub blowouts in AZ I am too deflated to go on with this
> and I am sure everyone is suitably bored but a few random points
>
> Assume that you believe that section 108 allows you to copy any damaged ,
> lost or stolen work ( by the way how do you copy a lost or stolen video ?)
> work that you can't replace at "reasonable" price, one thing that is VERY
> clear is that this for research/ archival use and could not therefor ever be
> used in a class which I confess is my main paranoia. I am also curious on
> defining terms like damaged ( is a 16mm doing red, a vhs getting jumpy?) and
> even more the concept of replacement at fair price. If you were referring
> for instance to a 16mm FEATURE film , most of these cost over $1,000 and in
> fact costs have gone up but SWANK for instance will still lease a 16mm of
> most of their library but they run $3,000 on up for something you probably
> really want on DVD anyway. Here is a video example I was thinking about.
> Kino used to own the home video rights to Aki Kaurismaki's THE MATCH FACTORY
> GIRL ( one of my favorites) but they expired a few years ago and a deal to
> license them for DVD to another company from the owner fell through and the
> are currently being "shopped" around. Suppose your video copy was damaged,
> and you can't get a new one because it out of print. Do you believe section
> 108 allows you to make a DVD under these circumstances. I am just asking but
> personally I don't believe this is either the intent or letter of the law
> and this is the kind of thing I worry about.

"

>
> Lastly I never meant to imply that anyone would really get sued because
> as a practical matter you could burn your entire media collection on DVD
> and be pretty sure you would never get caught. My point was that if you
> believe that you what are doing is legal , you should inform the rights
> holder ( assuming that you know who it is) and be willing to stand up
> for your position.
>
> I am more or less feature film centric and I realize that there are
> serious issues with legitimately rare, impossible to replace or track down
> educational material but I worry about the slippery slope.
>
> For the record I think you guys do a great job trying to protect
> rights especially in relation to academics & students who often
> seem to have little concern or understanding of the issues involved
>
> Now if Maddux does not win tonight I am going be REALLY, REALLY
> Grumpy

-- 
M. Troy Davis
Media Services Librarian
University of Tennessee Libraries :: The Studio
245 John C. Hodges Library
Knoxville, TN 37996
(865)974-6396
troydavis@utk.edu
http://www.lib.utk.edu/mediacenter/studio

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