[Videolib] RE: Insight Media's policy on digitization and streaming

chip (chip@chiptaylor.com)
Mon, 13 Feb 2006 16:31:59 -0500

I want to thank Elana Joffe of Insight Media for posting Insight Media's
(IM's) revised policy (#1), which clearly states IM "cannot and does not
grant anyone rights to digitize or to
digitally distribute any work under the TEACH Act." When I first read
Karen's post (#2) which incorrectly stated, "All titles purchased (via IM)
may be streamed," I immediately contacted Elana, asking her to clarify to
Karen (and Monique (#3) and the Listserv) that although IM does re-sell
DVDs/VHS from companies such as Chip Taylor Communications, which include
Public Performance Rights, those DVDs/Video copies do not include a
Digitization/Streaming license, which must be acquired separately. I also
noticed two other producer/distributor companies, Annenberg Media and
BioMedia, posted that exact information on the Listserv regarding IM not
being able to extend digitization and/or streaming rights to their programs.
Elana acted quickly and correctly and I applaud her for wanting to set the
record straight.

I then read Mark Kopp's post (#4), stating he did not fully understand
Elana's explanation.
Then he added, "does Insight Media intend to trump US Law?"
As attorney Arnold Lutzker makes very clear many times in the "Copyright
Compliance Series,"
(Website Link: http://www.chiptaylor.com/ttlmnp4526-.cfm) - Licensing and
Contract law does trump Copyright Law.

I did not see Mark's email in the post, but the last time I met him he
worked at IU #8; so I will use IU #8 as an example. IU #8 owns 16 programs
on VHS it acquired with Public Performance Rights from CTC. If IU #8 wants
to digitize and/or stream any of those VHS programs, it has to obtain a
digitization and/or streaming license from CTC or else it would be violating
the license it now has with CTC. If IU #8 purchased DVDs or VHS from IM, it
would receive only a Public Performance License; again, if it wanted a
digitization and/or streaming license, that would have to be obtained from
CTC.

When Mark further states to Elana in his post, "IF said institution meets
all said requirements of the TEACH Act, they are allowed BY LAW, to provide
said video materials." This is a most troubling statement. IU #8 has never
ordered a digitization and/or streaming license for any VHS it acquired from
CTC. If IU #8 has digitized and/or streamed any of the above-mentioned CTC
programs, IU #8 would be in violation of the terms of its licensed agreement
with CTC.

This example is one reason why I produced the "Copyright Compliance Series"
with an attorney who is an expert in copyright and contract law. I hope this
example shows to educators and librarians on this Listserv how important it
is to know what licensing you acquire when you order your programs, even if
you order from a re-seller. IM is a re-seller of programs with certain
licensed rights. Digitization and/or streaming rights of CTC programs are
available from CTC; thus if a customer wants to digitize and/or stream a CTC
program the customer may have acquired from IM, that customer still must
obtain those rights from CTC. Perhaps Mark's post could have suggested to
Elana that IM should consider informing customers, if they want other
licensing they should contact the producer/distributor directly (and since
this is being cc'd to her, she'll read that suggestion.)

I have seen several comments about digitization and licensing concerning
pricing. I encourage those customers who may be troubled by certain pricing
to contact companies such as CTC, as well as Annenberg Media, Landmark
Media, Bullfrog Films, and Pyramid Media, who, like me, have negotiated very
fair pricing and terms with producers regarding these important licenses.

One last point, vendors are willing to work with customers regarding
licensing and as attorney Lutzker advises in the "Copyright Compliance
Series," it is much less expensive to secure the proper licensing than to
face potential litigation. He explains very clearly that producers whose
licensing has been violated do seek damages and because today's' technology
leaves a "digital trail," it is wise not to take unnecessary chances.

I apologize if this post may seem like a plug for a series that I've
released; however, that really is not the case at all. After being part of a
legal case which ended upsetting a large number of vendors, educators and
librarians, not to mention the students and parents who lost out while an
expensive legal settlement was reached, I volunteered for over 12 months to
work closely with attorney Lutzker in order to produce this much-needed and
comprehensive series, which is now finally available and should help every
educator and librarian better understand copyright and protect his/her
institution from any potential violations.

Sincerely,

Chip Taylor, President
www.chiptaylor.com

Four references:

1)
In the light of the recent discussions on the list, I just wanted to
clarify any confusion that may exist on Insight Media's policy on granting
rights to stream and digitize products purchased from us.

Our policy as drafted by our legal counsel:

Insight Media cannot and does not grant anyone rights to digitize or to
digitally distribute any work under the TEACH Act. A school's right, if
any, to digitize and/or distribute a work arises under the law. It's up to
the school to determine in each case whether the school has any rights
under the TEACH Act with regard to a particular work. That requires the
school to review among other things whether it is an institution covered by
the law, it has the proper procedures in place to comply with the law, and
whether the work is eligible under the law, taking into account how and
with what rights it was obtained. Insight Media does not give advice on
whether a school has rights under the TEACH Act, which is a decision the
school should make in consultation with legal counsel.

Elana Joffe
Vice President, Acquisitions & Development
Insight Media, Inc.
212-721-6316 x103
elana@insight-media.com

----------
2)
Insight Media should be on your list. All titles purchased may be streamed.
The only stipulation is to stay within the parameters of The Teach Act.
Also, Ambassador and School Media do not (currently) provide any streaming.
When I spoke with customer service representatives, there was no plan to
even consider on-demand streaming. I applaud any efforts to maintain a list
and will assist in any way I can.

Karen L. Patterson
kpatters@pct.edu
Acquisitions Specialist for Books and Nonprint Media
Pennsylvania College of Technology
1-570-320-2400, ext.7781

3)
>>> mthreatt@indiana.edu 2/8/2006 6:16 PM >>>

Group,
Has anyone put together a growing list of film distributors who provide
on-demand streaming, or the digital right to encode films owned by the
media center and/or library? I know you can get this information when
you register for the National Media Market, but the specifics aren't
included i.e., license agreement loans for 1, 3, 5 years, etc. I'm not
interested in Broadcast rights via closed circuit.
I'm trying to create an internal list that will include the name of the
company, and the types of digital access available, especially for
asynchronous streaming.
For example: (this is only a draft, and may not be complete
information)
Media Digital Streaming License and/Rights Distributors:
Annenberg Media Free access (registration required)
Films Media Group
30 day free access (registration required), 1 year license
agreement, 3 year license agreement, on-
demand streaming via FMG Interface, digital right to encode copy
owned by library, digital file to be
stored on local server in MPEG1, MPEG4, Windows Media, QT formats
Feel free to contact me off-line if you wish, or I'm willing to work
with someone to create the list and have it published in a non-referred
journal.
Best,
Monique Threatt
Librarian for Media, Comm & Culture
Herman B Wells Library
Indiana University Bloomington
812 855 9857

-----
4)
[Our policy as drafted by our legal counsel:]
[Insight Media cannot and does not grant anyone rights to digitize or to
digitally distribute any work under the TEACH Act. A school's right, if
any, to digitize and/or distribute a work arises under the law. It's up
to the school to determine in each case whether the school has any
rights under the TEACH Act with regard to a particular work. That
requires the school to review among other things whether it is an
institution covered by the law, it has the proper procedures in place to
comply with the law, and whether the work is eligible under the law,
taking into account how and with what rights it was obtained. Insight
Media does not give advice on whether a school has rights under the
TEACH Act, which is a decision the school should make in consultation
with legal counsel.]

Ummmmmm.... I've read and re-read the aforementioned post, trying to
understand the implication....

Forgive me if I am less-than-enlightened in this regard, but does
Insight Media intend to trump US Law? How does one exempt themselves
from the LAW? "Our policy as drafted by our legal counsel:"
??????????...that's very interesting... You could possibly, under a
PURCHASE CONTRACT, limit your licensing, but I don't see how you can
exempt yourself from the TEACH Act. After having read the TEACH Act
several times, I do not recall anywhere, where it said "....unless the
company doesn't want ya to..."

Are you making the materials available in a digital format? If so, then
that's a totally different position.

If you are making a digital version, capable of a "digital transmission,
then said educational institution must purchase that format from
you...if not, the TEACH Act exemption provides for it...CONTRARY to "Our
policy as drafted by our legal counsel:"...once again, that's the whole
point of the TEACH Act...they want you to step up to digital
format...not steal your product.

IF said institution meets all said requirements of the TEACH Act, they
are allowed BY LAW, to provide said video materials. THAT'S THE POINT OF
THE TEACH ACT... If you put something "out there", it's eligible for
educational exemption. Besides, why would you NOT WISH to have a school
use your material??? I don't even understand the mindset...you produce
an educational product, but attempt to limit it's educational use!!!??
The TEACH Act provides protections for your rights.

What do YOU see as the difference between the rights for a VHS tape, vs
the rights for a digitized work? If the very same piece of information
can be viewed in perpetuity on a VHS tape, then why not, in some digital
format? What are you seeing, that I am not??? It is merely a shift in
the playback format of the very same materials! My video tape can sit on
my shelf for years, and the same material on that tape is somehow
viewable for years and years, but NOT the very same material in a
digital format??? Is that your claim??

Mark Kopp
*****************************************************

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