RE: [Videolib] TEACH act for streaming

) (clarkjc@jmu.edu)
Tue, 26 Apr 2005 12:24:00 -0400

Michael,

What I meant below does not usually involve straight video
programming: This stuff isn't usually available in a digital
form meant for network distribution. DVD is digital, but
doesn't otherwise qualify.

However... it will be interesting to see whether a
subscription service for digital video--such as the one
coming from Films Media Group--might qualify. If so, then I
would assume that digitizing individual program portions from
Films for the Humanities from VHS or DVD could be
questionable even under TEACH. Unless the possibility that a
subscription could not be tailored so narrowly as to meet the
specific need of an institution. Or a subscription might only
come into play if you needed to use online portions of "x"
number of programs from the vendor (otherwise you could
digitize under TEACH). Interesting complications.

And finally... I AM suggesting that in exercising Fair Use,
because 4 factors have to be weighed and applied in consort
with one another... there MAY be a case in which using the
entire work is justifiable despite what factor #3 about
portion suggests. Certainly, it's often done in terms of FU
related to INDIVIDUAL scholarship or teaching. The questions
are: Is even that an appropriate interpretation of FU? And if
so, is it also applicable to a more public and widespread
form of teaching or scholarship (which might include online
learning delivery methods)?

Jeff

---- Original message ----
>Date: Tue, 26 Apr 2005 08:15:15 -0700
>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>Subject: RE: [Videolib] TEACH act for streaming
>To: <videolib@library.berkeley.edu>
>
>I think I agree with what you are saying, though I'm not
clear about
>this piece:
>
>3. Even #2 isn't possible if the video progamming being used
>is available also in digital form meant for networked
>distribution. That version would have to be acquired and
used
>instead.
>
>Though I am fairly new to this game (media librarianship), I
am not
>aware of films available in a form meant for networked
distribution
>(other than simply in digital format). Do you just mean on
DVD? I think
>there are times when one can digitize analog material, even
if it is
>available digitally (for TEACH use). That would be if the
digital
>version has piracy protections on it. I think that in that
case, one
>can digitize analog material (and not own the digital
version). Are you
>thinking of something else when you are talking about "form
meant for
>networked distribution"?
>
>As far as your understanding of fair use and entire works, I
think you
>are on the money. Fair use does not, in my mind, allow for
the use of
>entire works, especially those of a "highly creative" (or
whatever the
>language is on that) medium like film.
>
>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: videolib-bounces@library.berkeley.edu
>[mailto:videolib-bounces@library.berkeley.edu] On Behalf Of
>clarkjc@jmu.edu
>Sent: Tuesday, April 26, 2005 5:46 AM
>To: videolib@library.berkeley.edu
>Subject: RE: [Videolib] TEACH act for streaming
>
>Michael, in answer to your final thought...
>
>I'm not sure what you mean when you say you're not sure you
>agree with my last statement. If that's basically "TEACH
>doesn't support streaming video, period"--then I should make
>sure I qualify further:
>
>1. TEACH doesn't support streaming/downloading of video for
>ENTIRE programs. Period.
>
>2. TEACH doesn't support streaming/downloading
of "reasonable
>portions" of video programs without also proper access and
>copy protection measures, and copyright education, in place
>for users.
>
>3. Even #2 isn't possible if the video progamming being used
>is available also in digital form meant for networked
>distribution. That version would have to be acquired and
used
>instead.
>
>4. The "reasonable portion" of programming that can be used
>does NOT necessarily have to meet the 4 fair use factors
test.
>
>5. But fair use is something distinct from the TEACH
>performance provision in 110. Fair use can involve
>performance too and, although you have to consider FU in
>light of the 4 criteria, it MIGHT be possible to apply it to
>entire programs under certain circumstances. I know that
this
>is done... but I have problems with it, too, when reading
>sec. 106. The third FU criterion reads:
>"(3) the amount and substantiality of the portion used in
>relation to the copyrighted work as a whole;"
>Here again, the word "portion" occurs. The most logical way
>to interpret it is the way in which it is used elsewhere in
>the law--most readily, in the TEACH 110 update itself. This
>would suggest to me that we're still talking about less-than-
>the-whole in both cases. That's the most common dictionary
>definition of the word (although some of them don't even
list
>this as the first def. of the word, none of the other defs.
>applies at all). Unless the implied limit in the
>amount/portion criterion, ON BALANCE, were overriden by the
>positive force of the other three criteria applied in an FU
>defense justification. But you can't take this approach with
>TEACH: there are no criteria to consider in a complicated
>balance--only a clear limitation specified by the
>word "portion".
>
>Jeff... wishing I didn't have to be so fussy about language;
>professional life and service would be so much simpler... ;)
>
>---- Original message ----
>>Date: Mon, 25 Apr 2005 14:15:31 -0700
>>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>>Subject: RE: [Videolib] TEACH act for streaming
>>To: <videolib@library.berkeley.edu>
>>
>>Wow! This is eye opening. I had not made the distinction
in
>the law in this section between performance and display.
>Thanks for pointing it out. Now that I read it with this in
>mind, it is clear that TEACH would not support the streaming
>of entire films. I am not sure I agree with your last
>statement, though.
>>
>>The
>>construction of sec. 110(2) therefore DOES NOT support
>>digitally networked distribution, by
>>streaming/download/whatever, of movies/videos/whathaveyou.
>>PERIOD.
>>
>>It seems to clarly allow for the performance of just about
>anything (other than those things that were acquired
>unlawfully or those films made for the purpose of pedagogy)
>in reasonable, limited portions.
>>
>>the performance of a
>>> nondramatic literary or musical work or reasonable
>>> and limited portions of any other work, or display
>>> of a work in an amount comparable to that which is
>>> typically displayed in the course of a live
>>> classroom session, by or in the course of a
>>> transmission, if -
>>
>>Michael Brewer
>>
>>
>>
>> -----Original Message-----
>> From: videolib-bounces@library.berkeley.edu on behalf
>of clarkjc@jmu.edu
>> Sent: Mon 4/25/2005 10:38 AM
>> To: videolib@library.berkeley.edu
>> Cc:
>> Subject: Re: [Videolib] TEACH act for streaming
>>
>>
>>
>> Yipes... we need to go over this stuff again. It's the
>> principle of eternal return, perhaps...
>>
>> I'm in the "reasonable portion" camp for the use of
>motion
>> pix/videorecordings/av
>programs/whathaveyouthat'slikeit.
>>
>> At one time in the past (and I can't locate the
>message I
>> thought I'd saved), I pointed out the interpretive
>> distinction in the section that Michael Brewer quotes
>below.
>> In the Senate Report that accompanied the TEACH bill
>(you can
>> find this at the teachtoolkit site at North Carolina
>State),
>> it made clear that movies fall into performance, not
>display.
>> And by construction of the section Mike quotes, you
>can see
>> that what's typically shown in class is a clause
>connected
>> ONLY to display. Movies can be displayed if it's a
>frame at a
>> time (and NOT in sequence, smart aleck!)... but they
>are
>> otherwise performed.
>>
>> But we don't have to rely on a dangling Senate report
>only.
>> Look at the top of Title 17, chap. 1, sec. 101. The
>> definitions there make it clear:
>>
>> ===============
>> To "display" a work means to show a copy of it, either
>> directly or by means of a film, slide, television
>image, or
>> any other device or process or, in the case of a
>motion
>> picture or other audiovisual work, to show individual
>images
>> nonsequentially.
>> ===============
>> To "perform" a work means to recite, render, play,
>dance, or
>> act it, either directly or by means of any device or
>process
>> or, in the case of a motion picture or other
>audiovisual
>> work, to show its images in any sequence or to make
>the
>> sounds accompanying it audible.
>> ===============
>>
>> Whenever either "perform" or "display" are used in
>copyright
>> law, they need to be understood in these terms. The
>> construction of sec. 110(2) therefore DOES NOT support
>> digitally networked distribution, by
>> streaming/download/whatever, of
>movies/videos/whathaveyou.
>> PERIOD.
>>
>> Okay. Going off now to take my medication... ;) Jeff
>>
>> ---- Original message ----
>> >Date: Mon, 25 Apr 2005 00:11:10 -0500
>> >From: Mark Richie <n2books@frontiernet.net>
>> >Subject: Re: [Videolib] TEACH act for streaming
>> >To: videolib@library.berkeley.edu
>> >
>> > OK - I give up - this is the site I draw my
>> > information from -
>> >
>>
> http://www.utsystem.edu/ogc/intellectualproperty/teach
>act.htm
>> >
>> > It is maintained by the University of Texas System
>> > for their professors. Somehow I think the limited
>> > portion of an audio-visual work allowed for
>> > streaming (that they maintain on their page) is
>tied
>> > up in the difference between a performance and a
>> > display. Perhaps someone would be good enough to
>> > email them for a clarification of their wording.
>> >
>> > And so it goes . . . MLR
>> >
>> > Brewer, Michael wrote:
>> >
>> > All,
>> >
>> >
>> >
>> > I erred (as I mentioned before) about streaming
>to
>> > classrooms. Though this is being done by some
>> > who claim Fair Use (not me! But by others who
>> > will remain unnamed), I don't think that it is
>> > widely accepted.
>> >
>> >
>> >
>> > No one did respond to the below email, however,
>> > about streaming entire films using TEACH as an
>> > exemption. I would be interested to hear if
>> > others read the law the same way I do (as
>allowing
>> > it in certain situtations).
>> >
>> >
>> >
>> > Here is my former message:
>> >
>> >
>> >
>> > ---------------------------------
>> >
>> >
>> >
>> > Jessica,
>> >
>> >
>> >
>> > Here is the text [from TEACH]: (from:
>> >
>http://www.copyright.gov/title17/92chap1.html#110
>> > ).
>> >
>> >
>> >
>> > (2) except with respect to a work produced or
>> > marketed primarily for performance or display as
>> > part of mediated instructional activities
>> > transmitted via digital networks, or a
>performance
>> > or display that is given by means of a copy or
>> > phonorecord that is not lawfully made and
>acquired
>> > under this title, and the transmitting
>government
>> > body or accredited nonprofit educational
>> > institution knew or had reason to believe was
>not
>> > lawfully made and acquired, the performance of a
>> > nondramatic literary or musical work or
>reasonable
>> > and limited portions of any other work, or
>display
>> > of a work in an amount comparable to that which
>is
>> > typically displayed in the course of a live
>> > classroom session, by or in the course of a
>> > transmission, if -
>> >
>> >
>> >
>> > The place where I see most websites err in
>> > reference to this document (in my understanding)
>> > is that they do not note all the ORs. I have
>been
>> > in multiple classes in which an entire film (or
>> > more than one film) were shown. The above does
>> > not seem to exclude that, as it states that an
>> > "amount comparable to that which is typically
>> > displayed in the course of a live classroom
>> > session" is ok for TEACH. It does not qualify
>> > this statement with the former (i.e. it does not
>> > say that you can show an amount comparable to
>that
>> > with is typically shown in class IF it is a
>> > limited portion. It allows for reasonable and
>> > limited portions of works OR amounts shown in a
>> > class). This may be splitting hairs, but I
>think
>> > it is an important distinction, if in fact this
>is
>> > what is meant here. I can't say with absolute
>> > certainty that it is, but it sure seems like it.
>> >
>> >
>> >
>> > 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: videolib-bounces@library.berkeley.edu
>> > [mailto:videolib-bounces@library.berkeley.edu]
>On
>> > Behalf Of Mark Richie
>> > Sent: Friday, April 22, 2005 3:35 PM
>> > To: videolib@library.berkeley.edu
>> > Subject: Re: [Videolib] TEACH act for streaming
>> >
>> >
>> >
>> > Kudos Deg -
>> > Dealing with the definition of "distance" within
>> > TEACH is minimal compared to other limitations -
>> > to whit: TEACH only allows streaming (or
>> > downloading) of portions of a video and only
>> > portions of videos that are not copy protected
>on
>> > the open market. (eg: if the video in question
>is
>> > available on the physical market only in a copy
>> > protected form, the permissive provisions of the
>> > act do not apply.)
>> > The act also prohibits the
>collection
>> > of clips in an archive for repeated downloading
>> > (as in: an on-line digital video library). To
>> > create a cataloged and accessible digital video
>> > library TEACH leave no alternative but to get
>> > digital distribution rights from producers -
>easy
>> > enough for curriculum driven productions - near
>> > impossible for entertainment, classic films et
>al.
>> >
>> > M. L. Richie
>> >
>> > "One must be so careful about what
>one
>> > says in a free country," Dick Cavett
>> >
>>
> +++++=================================================
>++++++++
>> +
>> >
>> > Deg Farrelly wrote:
>> >
>> > Sorry....
>> >
>> >
>> >
>> > TEACH Act covers DISTANCE ed, not digitization to
>campus
>> classrooms.
>> >
>> >
>> >
>> > Can you cite references that indicate it covers
>streaming
>> to classrooms?
>> >
>> >
>> >
>> > deg farrelly
>> >
>> > Arizona State University at the West Campus
>> >
>> > Phoenix, Arizona
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> > -----Original Message-----
>> >
>> > From: videolib-bounces@library.berkeley.edu on
>behalf of
>> Brewer, Michael
>> >
>> > Sent: Fri 4/8/2005 8:08 AM
>> >
>> > To: videolib@library.berkeley.edu
>> >
>> > Cc:
>> >
>> > Subject: RE: [Videolib] lending video and film
>> >
>> > Why are you having to worry about licensing?
>Streaming
>> into the classroom is covered by the TEACH act (in my
>> opinion, and in the opinion of nearly all others I
>have
>> read). We are looking into this technology, but I
>doubt we
>> will move on it in the near future (on a large
>scale), though
>> our library dean is interested in the idea.
>> >
>> >
>> >
>> > mb
>> >
>> >
>> >
>> > Michael Brewer
>> >
>> >
>> >
>> >
>> >
>> >
>> >
>> > ----------------------------------------------
>> >
>> >
>> >
>> >
>> >
>> > _______________________________________________
>> >
>> > 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
>>
>>
>>________________
>>FILE QUARANTINED
>>----------------
>>
>>Antigen for Exchange removed winmail.dat since it
>>was found to match the FILE FILTER= *.dat file filter.
>>________________
>>_______________________________________________
>>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