RE: [Videolib] question on copyrights

Brewer, Michael (brewerm@u.library.arizona.edu)
Wed, 22 Feb 2006 11:31:01 -0700

All,

Remember that the Fair Use provision may trump ANY exclusive right
(section 106 and 106a) of the copyright holder. As such, this covers
any of the following: reproduction of the copyrighted work, preparing
derivative works, distributing the copyrighted work, performing the
work, displaying the work, etc.

Here is the text, my bolding:

Notwithstanding the provisions of sections 106 and 106A [the exclusive
rights of the copyright holder], the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords OR BY ANY
OTHER MEANS SPECIFIED BY THAT SECTION, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of
copyright.

As such, none of the things mentioned in the previous message are
illegal if the use is found to be a "fair use" after having weighed the
4 factors.

Also, the info given below on section 108 (at least for the time being -
a revision of 108 is being considered) about making a copy of a video
for preservation purposes is incorrect. 108 only allows
libraries/archives to make preservation copies for UNPUBLISHED
materials. Libraries/archives can make a copy to REPLACE a lost,
stolen, damaged or deteriorating copy, but not make a copy (using 108 as
a rationale) as a preservation back up. That said, there is nothing to
prevent libraries/archives from considering fair use as a rationale for
making a preservation copy, but you would have to weigh each case
individually.

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: Wednesday, February 22, 2006 8:52 AM
To: 'videolib@library.berkeley.edu'
Subject: RE: [Videolib] question on copyrights

This is my 2 cents on it,
When you put a DVD on course reserve, you are not changing the format.
When
you transfer the DVD into an electronic format you are making a copy in
a
different format which is already illegal. You can make a copy of a VHS
for
archival purposes but it has to be used only in the library and you have
to
show that there not available copy for sale in a new format.

Also the TEACH Act mention that a few works are left outside the range
of
permitted materials: if the work is available in electronic format. For
this
means if I decide to use a video from Films Group that the license for
digital is available and I don't pay for the license I just go a head
and
streamed, that would be illegal.

I do believe to stream a video is illegal without any consent from the
producer or who ever owns the copyrights.

__________________________________________________
Cindy Badilla-Melendez
Media Resources Librarian
O'Shaughnessy-Frey Library,
University of St. Thomas
phone (651) 962-5464
fax (651) 962-5406

-----Original Message-----
From: Susan Albrecht [mailto:albrechs@wabash.edu]
Sent: Wednesday, February 22, 2006 8:56 AM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] question on copyrights

I think the question, though, Jessica, is why is it WORSE to stream a
film
**that the institution owns** and then password protect it and make it
available to only a particular class of students, than it would be to
have
it on reserve? (There is no argument, correct?, that it's okay to place

any video a library owns on reserve?) IOW, what most of us have done in

the past is take that VHS or DVD that we *own* and place it on
reserve. The students in that class would have to come into the library

during the hours that we're open, check it out and view it here.
Streaming
and making it available, on a restricted basis, only changes the WAY in
which those same students view the film. In the streaming situation, no

fewer copies of the film are being purchased. So I guess I'm scratching
my
head a little here about why this is worse than the old-fashioned
reserve
system.

Again, if the film were streamed into a classroom, it's no different
than
the faculty member swinging by the library, checking out the video and
showing it in his/her classroom. I just don't see why this would cut
into
sales; the institution still has to buy the original copy that it's
going
to stream. Maybe I'm giving away my position at a very small
institution
in this response, though, and you're really thinking of large
universities?

Susan at Wabash

At 04:20 PM 2/21/2006 -0500, you wrote:
>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

Susan Albrecht
Acquisitions Coordinator
Wabash College Lilly Library
Crawfordsville, IN
x6216
albrechs@wabash.edu

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"If you choose not to decide, you still have made a choice."--Neil Peart
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