[Videolib] copyright question: fair use or not?

Jessica Rosner (jrosner@kino.com)
Fri, 02 Jul 2004 09:39:11 -0400

I wish you or Gary would post the relevant section because I have
NEVER heard of "fair use" as applying to anything more than a PORTION of
FILM and I believe that is very specific in the code. Can one of you or
someone else post this section ? I know I should have it but I don't
I think the original question relates only to the issues of "face
to face teaching " exemption on how IT would apply , I think it very
dangerous indeed to mix " Fair Use " in this but I am more than willing to
be proved wrong.
HONEST
-- 
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: Fri, 2 Jul 2004 09:01:22 -0400 > To: videolib@library.berkeley.edu > Subject: Re: [Videolib] copyright question: fair use or not? > > 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) >>> >>> _______________________________________________ >>> Videolib mailing list >>> Videolib@library.berkeley.edu >>> http://www.lib.berkeley.edu/mailman/listinfo/videolib >> >> >> _______________________________________________ >> 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) > > _______________________________________________ > Videolib mailing list > Videolib@library.berkeley.edu > http://www.lib.berkeley.edu/mailman/listinfo/videolib