[Videolib] copyright question: fair use

clarkjc@jmu.edu
Fri, 2 Jul 2004 09:01:22 -0400

Jessica,

I think it's a misconception that fair use only deals with
small portions of works--with the further assumption that
this usually has to do with copying those portions. That is,
it's a misconception that this is an automatic rule.

There are four factors to consider in determining whether a
use of a work is fair. In shorthand: one of them is portion
of work, along with purpose of use, nature of the work, and
market effect on the work. Usual interpretation is that any
use that operates at an extreme of each factor, compromises
fair use claim and makes it less likely. E.g., the use is
commercial; the work is purely creative and not
informational; the "portion" is the whole work--whether
performed, or even worse yet copied; there's a direct market
impact because the use is clearly supplanting the purchase of
a copy or of a service relating to the work (e.g., public
screening rights service) that is readily available and
publicized. If a so-called "fair use" involves going to the
extreme in one of these factors, it makes the case hard to
defend: it better be good. Two or more factors, and you're
into untenable territory. But considering the factors, as
written, does not automatically disallow an extreme use of
any of them. One has to consider exactly how they are being
used in combination, when engaged in the law's sanctioned
teaching, reporting, criticism, scholarship and research.

Even when you deal with some explicit guidelines such as the
Fair Use Guidelines for Educational Multimedia, where
portions are specified (in a copying context), the
guidelines' Preamble suggests that these standards are not an
absolute:
"While only the courts can authoritatively determine
whether a particular use is fair use, these guidelines
represent the endorsers' consensus of conditions under which
fair use should generally apply and examples of when
permission is required.. Uses that exceed these guidelines
may nor may not be fair use. The participants also agree that
the more one exceeds these guidelines, the greater the risk
that fair use does not apply." (Set aside the fact that the
multimedia guidelines don't really even apply to Maureen's
use in this case--because it doesn't involve a "multimedia
project"--but do apply to the same general user community,
nonprofit ed.)

What my argument boils down to is: our reflex reactions on
interpretation should be tempered sometimes by reexaming our
premises and the actual legal provisions we have to work
with. Further tempered, of course, by how the courts have
decided to interpret those provisions, too.

Jeff

---- Original message ----
>Date: Thu, 01 Jul 2004 17:00:08 -0400
>From: Jessica Rosner <jrosner@kino.com>
>Subject: Re: [Videolib] copyright question: fair use or
not?
>To: <videolib@library.berkeley.edu>
>
>Um I'm lost on this. Fair use is only for small portions of
works what would
>it have to do with this and how could it be used as a
defense ?
>110 does seem pretty specific to me
>
>Just curious
>--
>Jessica Rosner
>Kino International
>333 W 39th St. 503
>NY NY 10018
>jrosner@kino.com
>212-629-6880
>
>> From: <clarkjc@jmu.edu>
>> Reply-To: videolib@library.berkeley.edu
>> Date: Thu, 1 Jul 2004 16:02:41 -0400
>> To: videolib@library.berkeley.edu
>> Subject: Re: [Videolib] copyright question: fair use or
not?
>>
>> 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
>>> Videolib@library.berkeley.edu
>>> 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)
>>
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>
>
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===========
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)