[Videolib] copyright question: fair use

clarkjc@jmu.edu
Fri, 2 Jul 2004 13:04:27 -0400

Randy, Jessica & Miles,

Okay, two things at the end of my shortened day here. I need
to revise and retract my thinking after all. ;)

1. Randy, the copyright law section you cite below is not the
fair use section, 107. I brought that up as an additional
possible justification for the "teaching" use/performance
proposed.

2. But unlike I recalled... section 107 does describe one of
its four factors as: "...the amount and substantiality of the
portion used in relation to the copyrighted work as a whole"
So, oops. By my strict reading (words mean what they mean,
if they mean clearly), use of the entire work under fair use
provisions would NOT be acceptable. A "portion" can't be the
whole work; it's gotta be some part of the work short of the
whole. Otherwise it ain't a "portion" (unless you start
arguing like, depends on what the meaning of "is" is....).
It's true that the gist behind fair use here seems to involve
the reproduction of works, not performance from legit copies,
but this restriction nonetheless must be dealt with.

So I stand corrected by you all and myself. As Emily Litella
says, "Never mind..."

It just means that it's sounder to claim the situation is
covered by a reasonable interpretation of 110.

Jeff

Here's Section 107 in toto:

Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use
made of a work in any particular case is a fair use the
factors to be considered shall include -

(1)

the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value
of the copyrighted work.

The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon
consideration of all the above factors

---- Original message ----
>Date: Fri, 2 Jul 2004 07:59:58 -0700 (PDT)
>From: "R. Hertzler" <rhertz@u.washington.edu>
>Subject: Re: [Videolib] copyright question: fair use or
not?
>To: videolib@library.berkeley.edu
>
>Title 15, Ch. 1, Sec. 110 is at:
>
>http://www4.law.cornell.edu/uscode/17/110.html
>
>(1) makes NO indication that fair use does not apply to the
WHOLE work (or
>any part thereof), at least by my reading.
>
>Randy Hertzler
>University of Washington Libraries
>
>On Fri, 2 Jul 2004, Jessica Rosner wrote:
>
>> 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
>>
>>
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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)