RE: [Videolib] Preservation/Security copies

(clarkjc@jmu.edu)
Wed, 26 Jan 2005 08:37:32 -0500

Oops, I see below that Michael already beat me to the punch
on identifying the final subsection of 108. Exactly.

I believe the fear that the library/archival copying
shouldn't be done--especially not for motion pix--is not a
legitimate objection at all, but the old fear dealing with
any kind of copying: that somehow, it'll result in the
indiscriminate distribution of otherwise (outside of 108c)
copies if we allow even this. But we went down that hapless
road a long time ago, in the 1909(?) copyright revision, when
the right of "copying" replaced the right of "publication"
that had existed earler--for no apparent real reason (i.e, a
principled rather than political one) that I have been able
to determine. At that time, there was no mass reprography
generally available for any kind of copyrightable work,
outside of the normal publishing process.

But that's a side issue and a hobbyhorse for me....

Jeff

---- Original message ----
>Date: Tue, 25 Jan 2005 16:23:57 -0700
>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>Subject: RE: [Videolib] Preservation/Security copies
(again)
>To: "'videolib@library.berkeley.edu'"
<videolib@library.berkeley.edu>
>
> Jessica,
>
>
>
> I think that were a process created by librarians to
> replace damaged, stolen or lost items that are no
> longer available as unused copies for a reasonable
> price (a good idea in my estimation, especially for
> media, as Interlibrary Loan is generally not an
> option as it is for print media), it would be a good
> idea to try to contact the rights holder before
> making a replacement copy (to see if they would sell
> you a copy at the "reasonable price"). This is not
> required by the law, but it might be something to
> look into. Seems clear now that I have paid
> attention to the wording (unused copy) that checking
> Ebay or OP vendors would not be required. I am
> aware that Disney is all powerful, but I can't see
> how they could argue their case under the current
> wording of the law or why they would want to, for
> that matter. Library's would not be generating
> additional copies for distribution or screening,
> only replacing copies that were lost or damaged. I
> have never heard of this section only being used for
> musical recordings. I believe it applies to all
> formats. I think the confusion comes in because the
> words "one copy or phonorecord of a work" are used.
> The final portion of 108 makes it clear that for
> this exemption (c) all formats are ok:
>
>
>
> 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).
>
>
>
> 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 1:02 PM
> To: videolib@library.berkeley.edu
> Subject: Re: [Videolib] Preservation/Security copies
> (again)
>
>
>
> 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
>
>

===========
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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