Re: [Videolib] Preservation/Security copies

(clarkjc@jmu.edu)
Wed, 26 Jan 2005 08:23:34 -0500

And I agree with Gary on this one: the copyright expert can't
be right, and it's very doubtful that any explanatory report
accompanying the 1976 law would interpret the 108(c)
provision in this way to mean primarily musical recordings
(and not audiovisual works.)

Such a meaning would have been made explicit in section 108.
In fact, what's made explicit instead is the final subsection
of 108:

"(i)
The rights of reproduction and distribution under this
section do not apply to a musical work, a pictorial, graphic
or sculptural work, or a motion picture or other audiovisual
work other than an audiovisual work dealing with news, except
that no such limitation shall apply with respect to rights
granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations,
diagrams, or similar adjuncts to works of which copies are
reproduced or distributed in accordance with subsections (d)
and (e)."

To repeat: "...no such limitation [for motion pic or av work]
shall apply with respect to rights granted by subsections (b)
and (c)..."

Section (c), dealing with library/archive rights, is what
we're talking about. Those rights involve any type of work
that meets (c)'s criteria for applying them.

Jeff

---- Original message ----
>Date: Tue, 25 Jan 2005 14:45:39 -0800
>From: Gary Handman <ghandman@library.berkeley.edu>
>Subject: Re: [Videolib] Preservation/Security copies
(again)
>To: videolib@library.berkeley.edu
>
> 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

===========
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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