Re: [Videolib] question on copyrights

Jessica Rosner (jrosner@kino.com)
Tue, 21 Feb 2006 16:20:00 -0500

I too appreciate the discussion but do think it is more than a stretch
and potentially dangerous to suggest that fair use would allow the streaming
an an entire dramatic film WITHOUT the copyright holders permission. I think
this goes against decades of accepted copyright and assumes that if you only
violate ONE element of the 4 factors listed for Fair Use it is OK. Taken to
its extreme it would also allow to digitize and stream whole books under
copyright without permission etc. I don't think the idea of 3 minutes or no
more than 10 percent of a work was developed out of thin air. What I always
like to respond in these cases is that if you feel this IS legal and covered
than you should have the courage of your convictions and contact the
copyright holder be it Kino or Disney and tell them that this is your
understanding of the law and you are going to do it. While I am not a big
fan of how Disney and over major studios handle stuff , the truth is small
companies like Kino don't have the resources for much legal action ( though
we have taken some none at this point has been against an academic
institution).
As for what a company would "lose" if its films are streamed into a
classroom, the simple answer is the revenue we need to survive. The average
Kino film costs $30 and most are bought by wholesalers at a steep discount
If Kino sells a copy of Metropolis for $17 to a school that buys it from
Ingram or Amazon etc and then streams it to classes all over its entire
system we simply can't survive. We expect for instance different campuses of
an institution to buy their own copy ( though can always interlibrary loan)
and on very popular films a school might buy a few copies. What if the
school just borrowed a legal copy from the local rental store and digitized
that for streaming? I assume you can see the problem. Now I think we are
more than open to working with schools on streaming when we have rights and
can have some limits on the terms. There was an old joke by Goddard that
eventually Hollywood would just make one film a year and everyone would
watch that, well my fear of the slippery slope of thinking that you can
digitize whole films under "Fair Use" is that some day everyone will want to
digitize it from the SAME copy.

For the record I personally take a liberal view of these things and have
allowed several schools that have closed circuit campus systems to use our
films AT NO EXTRA charge if it is just being sent to a single class but this
is a lot different from giving unlimited access to both classes and students
in those classes.

It is already difficult and getting harder by the day to put out ANY small
film on DVD. There are so many wonderful foreign & classic films we COULD
put out if only we knew enough people would buy them. While streaming should
theoretically be some kind of additional revenue stream under your scenario
it would almost certainly be the death of putting any of these films out.
As it stands I doubt we will ever put out another African film and I can't
get Kino to release the 3 silent films by women directors that I produced on
video on ONE DVD for $30 because their is not enough of a market. I
understand we really all want to work together so that everyone gets what
They need but suggesting that schools can digitize whole films without
compensation to rights holders is almost guaranteed to make fewer and fewer
small films legally available

OK long rant sorry still jet lagged
Because of lack of market

On 2/21/06 3:31 PM, "Brewer, Michael" <brewerm@u.library.arizona.edu> wrote:

> Jessica,
>
> I agree with what you are saying about copies professors bring in. I
> just had this same conversation with our Reserves staff.
>
> I understand your position and sensitivities around this issue. My
> question, though, is what is to be lost by rights holders (especially
> those who may own the rights of works that are out of print) by
> allowing passworded, encoded streaming to a class or reserves in lieu of
> having students check out the film and view it off of a VHS tape or DVD?
>
> If we weigh the 4 factors the way I think you are suggesting, any one
> factor against (amount, for instance) would mean nixing fair use, and I
> think that is completely contrary to the spirit (and text) of the law.
>
> Additionally, TEACH and fair use are different sections of the law, and
> are not meant to be coupled together either to support or to deny
> exemptions to the exclusive rights of copyright holders (TEACH says X
> and Fair Use say Y, so that means you can't do such and such).
>
> Lastly, let me just say that I very much enjoy and value these dialogues
> that we have on Videolib. I think it is extremely valuable for us to
> hash out these issues as a community of professionals associated with
> media. I also understand that we will not always agree, but that does
> not at all lessen the value of this forum, or the respect I have for its
> members.
>
> 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 Jessica
> Rosner
> Sent: Tuesday, February 21, 2006 11:18 AM
> To: videolib@library.berkeley.edu
> Subject: Re: [Videolib] question on copyrights
>
> Well we will have to agree to disagree but since the TEACH ACT
> specifically prohibits the use of an entire dramatic work and
> " Fair use' requires you to consider the amount use I don't see a valid
> Argument for ever streaming a feature film without the rights holders
> Permission. As you might imagine this is an issue on which I am rather
> Sensitive since as I have mentioned before Kino ITSELF often does not
> own rights for streaming titles in our collection.
> The gist of the rest of my post was a response to the original question
> About being VERY careful in using something provided by a professor.
> In most cases it would be far wiser to just purchase the copy for the
> Institution and if you can't find one than find out EXACTLY how the
> professor obtained his or hers. If they happen to have an old legal
> Copy of a rare and now out of print title, great, if on the other hand
> They bought if off the internet from one of those charming sites that
> Offers " rare unavailable films" odds are it is an ILLEGAL copy
>
>
> On 2/21/06 12:53 PM, "Brewer, Michael" <brewerm@u.library.arizona.edu>
> wrote:
>
>> Jessica,
>>
>> TEACH allows for streaming of any amount necessary to meet the
>> educational goal if it is "non-dramatic", so that may include entire
>> "non dramatic" films (as they are used all the time in class in this
>> way).
>>
>> For feature/art films ("dramatic") the law does not seem to allow for
>> entire films, just limited and reasonable portions or "displays" of
> any
>> amount usually shown in class (which is irrelevant for streaming, as
> it
>> applies not to performance, but to display - stills). I, personally,
>> think this is a major flaw in the law, but that is what it says.
>>
>> Fair Use says nothing about not using an entire work (be that print,
> or
>> film or something else), just about weighing the 4 factors.
>>
>> My understanding of that would mean that the use of an entire film
> would
>> heavily weigh against fair use for Amount, but if the use is
> educational
>> or scholarly, that would weigh heavily in favor of fair use. The
> Effect
>> would depend on whether or not the film were in print and, I think (as
>> much or more so), on the mechanisms used to perform the film
>> (passworded, streamed without the ability to copy, etc.). If
> appropriate
>> measures were taken, even for a film in print, my sense is that Effect
>> might still not weigh against the use [for classroom viewing or
>> streaming for reserves] (how, for example, could one argue that the
>> effect of this use is greater than putting this same film on reserve
> for
>> students to check out and view on their own?). Lastly one would have
> to
>> weigh Nature. Because film is considered a highly creative medium,
> this
>> would weigh more heavily against in most cases.
>>
>> As such, my weighing of the 4 fair use factors comes out pretty even.
>> Of course one should base this judgment on each case individually, but
> I
>> think this generic scenario shows that, if you understand the weighing
>> of factors as I do (and I know many of you don't), the use of entire
>> films for streaming to classrooms or reserves may still be considered
> a
>> fair use in many instances.
>>
>> Please be gentle in your reproaches :)
>>
>> 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 Jessica
>> Rosner
>> Sent: Tuesday, February 21, 2006 9:21 AM
>> To: videolib@library.berkeley.edu
>> Subject: Re: [Videolib] question on copyrights
>>
>> I agree with most of this but it is clear to me anyway that both
>> TEACH and fair use prohibit the use of an entire film in streaming
>> Or distance Ed. However to source of the film is irrelevant so long at
>> is a
>> LEGAL COPY and Professors are notorious for having bootleg copies so
>> MAKE
>> sure It is a LEGAL copy from the US and not taped off air, pirate
> copy
>> Etc. Usually you can tell from the box but again be careful with
>> Profs as they traditionally have very little respect for what is a
>> Legal copy and what is not
>>
>>
>> On 2/17/06 10:40 AM, "Brewer, Michael" <brewerm@u.library.arizona.edu>
>> wrote:
>>
>>> Cindy
>>>
>>> The 10% or 3 minutes is not part of the law.
>>>
>>> If the use is for a class, it is clear under TEACH that you can
>>> use/perform whatever amount you need to toward the educational goal
> if
>>> it is a "nondramatic" film, or perform limited and reasonable
> portions
>>> of any other film.
>>>
>>> The exception are those films specifically created to be used as part
>> of
>>> mediated instructional activities transmitted via digital networks.
>>> These are not covered under TEACH.
>>>
>>> You could also use fair use to rationalize the streaming, if you feel
>>> TEACH is too restrictive, but each use would have to be scrutinized
>>> individually and weighed by the 4 factors to determine whether the
> use
>>> was "fair use."
>>>
>>> TEACH and fair use only stipulate that the copy is a legal one, not
>> who
>>> owns it. However, if there are other license agreements around the
>> use
>>> of a particular video, those could trump copyright law. I'll let
>> others
>>> chime in on that 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: videolib-bounces@library.berkeley.edu
>>> [mailto:videolib-bounces@library.berkeley.edu] On Behalf Of
>>> Badilla-Melendez, Cindy
>>> Sent: Thursday, February 16, 2006 3:31 PM
>>> To: 'videolib@library.berkeley.edu'
>>> Subject: [Videolib] question on copyrights
>>>
>>> Hello,
>>>
>>> I know that few weeks ago there was a discussion on copyrights for
>> video
>>> clips online. I know we can use 10% or 3 minutes which ever is less.
>> But
>>> this is related to if the library owns the video.
>>>
>>> Can we put video clips online (streaming video) for distance ed, of
>>> videos
>>> owned by faculty but not by the library?
>>>
>>> We all know that if the library buys a video, we pay $300 for it, and
>> if
>>> a
>>> professor buy the same video he/she will pay only $50. So would that
>> has
>>> something to with being allowed legally to put the prof's copy of
>> video
>>> clips online? We are allowed to put personal copies on course
> reserve.
>>>
>>> What do you think?
>>>
>>> Thanks,
>>> Cindy
>>>
>>> __________________________________________________
>>> Cindy Badilla-Melendez
>>> Media Resources Librarian
>>> O'Shaughnessy-Frey Library,
>>> University of St. Thomas
>>> phone (651) 962-5464
>>> fax (651) 962-5406
>>>
>>>
>>>
>>> _______________________________________________
>>> 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
>>
>>
>>
>> Proud Resident of a BLUE STATE
>>
>> Jessica Rosner
>> Kino International
>> 333 W 39th St. 503
>> NY NY 10018
>> jrosner@kino.com
>> 212-629-6880
>>
>>
>> _______________________________________________
>> Videolib mailing list
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>
>
>
> Proud Resident of a BLUE STATE
>
> Jessica Rosner
> Kino International
> 333 W 39th St. 503
> NY NY 10018
> jrosner@kino.com
> 212-629-6880
>
>
> _______________________________________________
> Videolib mailing list
> Videolib@library.berkeley.edu
> http://www.lib.berkeley.edu/mailman/listinfo/videolib
>
> _______________________________________________
> Videolib mailing list
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> http://www.lib.berkeley.edu/mailman/listinfo/videolib

Proud Resident of a BLUE STATE

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

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