Re: [Videolib] Preservation/Security copies (again)

Gary Handman (ghandman@library.berkeley.edu)
Tue, 25 Jan 2005 14:45:39 -0800

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Your copyright expert be damned, Jessica. Over the past 30 years, most of
us in the trenches (including the lawyers who agree with us) have
interpreted this section to also apply to video.

I would by all means (and without qualm) copy the entire Eyes on the Prize
series if the copies I had were falling apart. (Fortunately, copies of
this series are still banging around if you look hard enough). The
alternative would be to rip up the cataloging record and tell the public
that the best video work ever dealing the Civil Rights Movement was no
longer accessible. Not a responsible course of action from a librarian's
point of view.

Can't be any loss of sale if they're no longer selling it, eh?

gary

At 03:01 PM 1/25/2005 -0500, you wrote:
>Two things at that is it. I was told by at least one copyright expert that
>the section was intended ONLY for music recordings but more to the point
>if you believe this section would
>entitle a library to make a copy of for example an out of print Disney
>title that costs $200 to
>get used replacement copy or EYES ON THE PRIZE ( can't imagine what that
>would go for)
>than you should back up your belief by sending a letter to the rights
>holder ( which in these two
>cases at least is not difficult) to explain your actions i.e I could not
>get replacement copy of
>your title which I legally purchased and am thus dubbing it from another
>legal copy per what
>I believe is the libraries right under copyright law. Provided you do that
>and make the owner aware I have no problem but I believe if this were in
>fact tested in court ( and let's face it we could probably count on Disney
>for that one) the copyright holder would win.
>
>FYI the last part about used copies is a non issue as the right of first
>sale applies to
>any legal copy. And I do think you got a bargain on Berlin but I have not
>been following
>it that closely on eBay lately
>
>Jessica
>
>
>Proud Resident of a BLUE STATE
>
>Jessica Rosner
>Kino International
>333 W 39th St. 503
>NY NY 10018
>jrosner@kino.com
>212-629-6880
>
>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>Reply-To: videolib@library.berkeley.edu
>Date: Tue, 25 Jan 2005 11:41:46 -0700
>To: "'videolib@library.berkeley.edu'" <videolib@library.berkeley.edu>
>Subject: RE: [Videolib] Preservation/Security copies (again)
>
>
>Jessica,
>
>
>
>A library is allowed photocopy an entire out of print book (or make a copy
>of any out of print item, regardless of format) using this exemption as
>long as it is unavailable "at a reasonable price" (and if all the other
>conditions are met - previous ownership by the library, the item is not
>piracy protected, the library's copy is lost, stolen, damaged or
>deteriorating, etc.). Yes, it is up to libraries to determine what "a
>reasonable price" is, and that could be contested. I, personally,
>wouldn't use this exemption unless the item were not available for
>purchase at all (for example if I had and lost a subtitled copy of
>Aleksandr German's Khrustalev, Mashinu!/Khrustalev, My Car!, which I don't
>believe is available for purchase anywhere, including Ebay). I can see,
>however, how some would have a different understanding of what reasonable
>is (is it market value?, is it about what it cost in the first place?, etc.)
>
>
>
>I think it is important to understand that this exemption was, I think,
>intended to increase access to works that are no longer available
>commercially. Ebay does throw a bit of a wrench into things, as any one in
>the world can, potentially become an antiquarian dealer. I think it would
>have to be up to libraries to determine where they would search for an
>item before determining it was not available (our library would probably
>just use an out of print search through a vendor, though I know for a fact
>they are generally not very thorough).
>
>
>
>I think it is pretty clear, however, that this exemption was not granted
>to libraries in order to save money. It is available to us to help retain
>important items in our collections to further the scholarship and learning
>of our faculty and students. If it is available for purchase, it should
>not really fall under this exemption.
>
>
>
>It is funny you mention Berlin Aleksanderplatz, as the purchase of a used
>copy of this (for 500 bucks, so I either got a great deal, or the going
>rate is a bit lower than 1500) is what got me thinking about this
>exemption and what I would do were it to be damaged or stolen (and what if
>just one tape were damaged? would I be required to purchase another copy
>of all 8 VHS tapes, or however long it is, just to replace this one? I
>doubt I could purchase just one tape. Also, I looked for nearly a year
>before I found a legal copy of Berlin Aleksanderplatz for sale at all
>(most were dubbed copies "for cinema enthusiasts"). Were it to be stolen,
>I would only search for a limited amount of time before I would consider
>replacing it using this exemption.
>
>
>
>Another interesting issue is that with the sale of used items the
>copyright holder is not being paid for the secondary sale of the item, so
>there is no potential loss of income to the holder of the copyright (and
>this is who the law, I think, is intended to protect). I wonder if, from
>a legal point of view, this would impact on our discussion. I am totally
>in the dark on this one.
>
>
>
>mb
>
>
>Michael Brewer
>
>Slavic Studies, German Studies & Media Arts Librarian
>
>University of Arizona Library A210
>
>1510 E. University
>
>P.O. Box 210055
>
>Tucson, AZ 85721
>
>Voice: 520.307.2771
>
>Fax: 520.621.9733
>
>brewerm@u.library.arizona.edu
>-----Original Message-----
>From: Jessica Rosner [mailto:jrosner@kino.com]
>Sent: Tuesday, January 25, 2005 9:33 AM
>To: videolib@library.berkeley.edu
>Subject: Re: [Videolib] Preservation/Security copies (again)
>
>
>
>Um I am not going to go to far on this one which I have posted before but
>you don't just to
>get to dub a copy of any out of print title, anymore than you get to
>photocopy an out of print book. If you think Disney allows libraries to
>dub a title they take out circulation on a routine
>basis because it now costs $200 to buy a used one, think again. Good luck
>legally determining
>what is a " reasonable " cost. If the going rate on eBay of a LEGAL used
>copy of BERLIN ALEXANDERPLATZ is $1500 ( which I think it is) who is to
>say that is not a fair price. That is
>the cost of a rare out of print title. Video is a long, long, long way
>from being an "obsolete".
>
>Needless to say there is little chance of any library being "caught"
>dubbing an item but as
>a distributor I have like to believe they would not.
>
>Jessica
>( hey I think it has been MONTHS since I had a rant . I am out of practice)
>
>
>
>
>
>Proud Resident of a BLUE STATE
>
>Jessica Rosner
>Kino International
>333 W 39th St. 503
>NY NY 10018
>jrosner@kino.com
>212-629-6880
>
>
>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>Reply-To: videolib@library.berkeley.edu
>Date: Mon, 24 Jan 2005 15:24:57 -0700
>To: "'videolib@library.berkeley.edu'" <videolib@library.berkeley.edu>
>Subject: [Videolib] Preservation/Security copies (again)
>
>
>All,
>
>
>
>I heard from very few people about the preservation/security copy issue,
>which makes me wonder...
>
>
>
>I am wondering if any of you have actually used this exemption at any
>point (the exemption which allows libraries to get a copy of a damaged or
>lost item from another institution), or if any of you have made a copy of
>a video for another library that was using this exemption. If so, I would
>love to hear about it.
>
>
>
>It is hard for me to believe that no library out there has ever lost or
>damaged an out of print video. On the other hand, I also don't want to
>believe that no media librarian out there has ever had the 1) knowledge,
>and 2) perseverance to actually use this exemption in order to get a copy
>of a video from another institution.
>
>
>
>If this, indeed, is the case, that this exemption is not being used to
>provide our customers with items that we legally purchased, and which we
>have every right to duplicate (or request a duplicate from another
>institution), it is really too bad.
>
>
>
>I think that as a group we might want to figure out some sort of process
>(and agreement) for providing one another copies of videos, when all the
>terms required of this exemption are met (1. legal copy was once owned by
>the requesting institution; 2. it is now lost, stolen, or damaged; 3. the
>video is not available for purchase "at a reasonable price").
>
>
>
>I don't yet belong to VRT (I am fairly new to the Media Arts portion of my
>job), but perhaps that is the group through which to work on this. Anyone
>else have any ideas, comments, etc?
>
>
>
>mb
>
>
>
>Michael Brewer
>
>Slavic Studies, German Studies & Media Arts Librarian
>
>University of Arizona Library A210
>
>1510 E. University
>
>P.O. Box 210055
>
>Tucson, AZ 85721
>
>Voice: 520.307.2771
>
>Fax: 520.621.9733
>
>brewerm@u.library.arizona.edu
>
>
>
>
>

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
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Your copyright expert be damned, Jessica.  Over the past 30 years, most of us in the trenches (including the lawyers who agree with us) have interpreted this section to also apply to video. 

I would by all means (and without qualm) copy the entire Eyes on the Prize series if the copies I had were falling apart.  (Fortunately, copies of this series are still banging around if you look hard enough).  The alternative would be to rip up the cataloging record and tell the public that the best video work ever dealing the Civil Rights Movement was no longer accessible.  Not a responsible course of action from a librarian's point of view. 

Can't be any loss of sale if they're no longer selling it, eh?

gary

At 03:01 PM 1/25/2005 -0500, you wrote:

Two things at that is it. I was told by at least one copyright expert that the section was intended ONLY for music recordings but more to the point if you believe this section would
entitle a library to make a copy of for example an out of print Disney title that costs $200 to
get  used replacement copy or EYES ON THE PRIZE ( can't imagine what that would go for)
than you should back up  your belief by sending a letter to the rights holder ( which in these two
cases at least is not difficult) to explain your actions i.e I could not get  replacement copy of
your title which I legally purchased and am thus dubbing it from another legal copy per what
I believe is the libraries right under copyright law. Provided you do that and  make the owner aware I have no problem but I believe if this were in fact tested in court ( and let's face it we could probably count on Disney for that one) the copyright holder would win.

FYI the last part about used copies is a non issue as the right of first sale applies to
any legal copy. And I do think you got a bargain on Berlin but I have not been following
it that closely on eBay lately

Jessica


Proud Resident of a BLUE STATE

Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880

From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
Reply-To: videolib@library.berkeley.edu
Date: Tue, 25 Jan 2005 11:41:46 -0700
To: "'videolib@library.berkeley.edu'" <videolib@library.berkeley.edu>
Subject: RE: [Videolib] Preservation/Security copies (again)


Jessica,



A library is allowed photocopy an entire out of print book (or make a copy of any out of print item, regardless of format) using this exemption as long as it is unavailable "at a reasonable price" (and if all the other conditions are met - previous ownership by the library, the item is not piracy protected, the library's copy is lost, stolen, damaged or deteriorating, etc.).  Yes, it is up to libraries to determine what "a reasonable price" is, and that could be contested.  I, personally, wouldn't use this exemption unless the item were not available for purchase at all (for example if I had and lost a subtitled copy of Aleksandr German's Khrustalev, Mashinu!/Khrustalev, My Car!, which I don't believe is available for purchase anywhere, including Ebay). I can see, however, how some would have a different understanding of what reasonable is (is it market value?, is it about what it cost in the first place?, etc.)



I think it is important to understand that this exemption was, I think, intended to increase access to works that are no longer available commercially. Ebay does throw a bit of a wrench into things, as any one in the world can, potentially become an antiquarian dealer.  I think it would have to be up to libraries to determine where they would search for an item before determining it was not available (our library would probably just use an out of print search through a vendor, though I know for a fact they are generally not very thorough).



I think it is pretty clear, however, that this exemption was not granted to libraries in order to save money.  It is available to us to help retain important items in our collections to further the scholarship and learning of our faculty and students.  If it is available for purchase, it should not really fall under this exemption. 



It is funny you mention Berlin Aleksanderplatz, as the purchase of a used copy of this (for 500 bucks, so I either got a great deal, or the going rate is a bit lower than 1500) is what got me thinking about this exemption and what I would do were it to be damaged or stolen (and what if just one tape were damaged? would I be required to purchase another copy of all 8 VHS tapes, or however long it is, just to replace this one?  I doubt I could purchase just one tape.  Also, I looked for nearly a year before I found a legal copy of Berlin Aleksanderplatz for sale at all (most were dubbed copies "for cinema enthusiasts"). Were it to be stolen, I would only search for a limited amount of time before I would consider replacing it using this exemption.



Another interesting issue is that with the sale of used items the copyright holder is not being paid for the secondary sale of the item, so there is no potential loss of income to the holder of the copyright (and this is who the law, I think, is intended to protect).  I wonder if, from a legal point of view, this would impact on our discussion. I am totally in the dark on this one.



mb


Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.edu
-----Original Message-----
From: Jessica Rosner [mailto:jrosner@kino.com]
Sent: Tuesday, January 25, 2005 9:33 AM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] Preservation/Security copies (again)



Um I am not going to go to far on this one which I have posted before but you don't just to
get to dub a copy of any out of print title, anymore than you get to photocopy an out of print book. If you think Disney allows libraries to dub a title they take out circulation on a routine
basis because it now costs $200 to buy a used one, think again. Good luck legally determining
what is a " reasonable " cost. If the going rate on eBay of a LEGAL used copy of BERLIN ALEXANDERPLATZ is $1500 ( which I think it is) who is to say that is not a fair price. That is
the  cost of a rare out of print title. Video is a long, long, long way from being an "obsolete".

Needless to say there is little chance of any library being "caught" dubbing an item but as
a distributor I have like to believe they would not.

Jessica
( hey I think it has been MONTHS since I had a rant . I am out of practice)





Proud Resident of a BLUE STATE

Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880


From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
Reply-To: videolib@library.berkeley.edu
Date: Mon, 24 Jan 2005 15:24:57 -0700
To: "'videolib@library.berkeley.edu'" <videolib@library.berkeley.edu>
Subject: [Videolib] Preservation/Security copies (again)


All,



I heard from very few people about the preservation/security copy issue, which makes me wonder... 



I am wondering if any of you have actually used this exemption at any point (the exemption which allows libraries to get a copy of a damaged or lost item from another institution), or if any of you have made a copy of a video for another library that was using this exemption.  If so, I would love to hear about it.



It is hard for me to believe that no library out there has ever lost or damaged an out of print video.  On the other hand, I also don't want to believe that no media librarian out there has ever had the 1) knowledge, and 2) perseverance to actually use this exemption in order to get a copy of a video from another institution.



If this, indeed, is the case, that this exemption is not being used to provide our customers with items that we legally purchased, and which we have every right to duplicate (or request a duplicate from another institution), it is really too bad. 



I think that as a group we might want to figure out some sort of process (and agreement) for providing one another copies of videos, when all the terms required of this exemption are met (1. legal copy was once owned by the requesting institution; 2. it is now lost, stolen, or damaged; 3. the video is not available for purchase "at a reasonable price").



I don't yet belong to VRT (I am fairly new to the Media Arts portion of my job), but perhaps that is the group through which to work on this.  Anyone else have any ideas, comments, etc?



mb



Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.edu





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

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