[Videolib] copyright question: fair use

clarkjc@jmu.edu
Thu, 1 Jul 2004 16:02:41 -0400

Gary, good point I hadn't considered before. But thinking
still further, let me reexamine our assumptions now.

The section of Title 17 we're concerned with here, is 110,
dealing with performance. It reads in relevant part:

110. Limitations on exclusive rights: Exemption of certain
performances and displays

Notwithstanding the provisions of section 106 [copyright
holder's rights], the following are not infringements of
copyright:

(1)
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;
[...]

Now, the loose term that Maureen and followup comments
(including mine) have been using is the all-purpose "fair
use". This reminds me, obviously now, that fair use does have
its own section in 107 and is really a separate issue.

My argument on second thought is that the privilege granted
by 110(1) for performance does not necessarily limit the
interpretation of the fair use defense in 107. While 110(1)
allows a "safe harbor" for so-called classroom performance...
it doesn't mean that a not-quite-classroom performance for
instructional activity in a nonprofit institution could not
also be justified under 107.

Besides: although traditionally 110(1) is taken to refer to a
formal course and classroom situation, the actual description
above does allow more leeway than that. If Maureen's
orientation is in a facility that normally has instructional
activity occurring in it, this strengthens the connection to
the performance exemption under a liberal interpretation.
While not precluding a fair use defense also. I'd say she has
a foot in both camps, so to speak....

Jeff, who didn't think of this the first time he spouted
off...

---- Original message ----
>Date: Thu, 01 Jul 2004 08:22:41 -0700
>From: Gary Handman <ghandman@library.berkeley.edu>
>Subject: Re: [Videolib] copyright question: fair use or
not?
>To: videolib@library.berkeley.edu
>
>Hi
>
>The only teensy pause is the definition of "face-to-face"
teaching: the
>law really defines such as being in the course of regular
instruction in a
>place where instruction usually occurs. Your use doesn't
technically meet
>those requirements.
>
>Would I worry...nah!
>
>Gary
>
>At 09:25 AM 7/1/2004 -0400, you wrote:
>>Ok, I THINK I know the answer to this, but just in
case . . .
>>a college wants to show a copy of a recent popular
documentary, which is
>>in the Media Services nonprint collection, as part of a
freshman
>>orientation program. The film will be introduced by an
instructor, and
>>small group discussions of the film will take place the
next day, each
>>moderated by an instructor. Fair use or not?
>>I think it is fair use, because the presentation is in
connection with
>>face to face teaching activities. The tricky part, the
part that gives me
>>a teensy little pause, is that the discussions will take
place the next day.
>>I'd appreciate any thoughts anyone has on this,
>>thanks so much!
>>
>>_______________________________________________
>>Videolib mailing list
>>Videolib@library.berkeley.edu
>>http://www.lib.berkeley.edu/mailman/listinfo/videolib
>
>Gary Handman
>Director
>Media Resources Center
>Moffitt Library
>UC Berkeley
>ghandman@library.berkeley.edu
>http://www.lib.berkeley.edu/MRC
>
>****
>
>"Movies are poems, a holy bible, the great mother of us."
> --Ted Berrigan
>
>_______________________________________________
>Videolib mailing list
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>http://www.lib.berkeley.edu/mailman/listinfo/videolib

===========
Jeff Clark
Director
Media Resources MSC 1701
James Madison University
Harrisonburg VA 22807
clarkjc@jmu.edu (email)
540-568-6770 (phone)
540-568-7037 (fax)