Re: [Videolib] question on copyrights

Gary Handman (ghandman@library.berkeley.edu)
Wed, 22 Feb 2006 13:00:20 -0800

I don't think fair use covers entire works in most cases...I do think
that Section 108 as amended allows the digitization of whole works
legally acquired, currently out of distribution, and determined to be
physically at risk. Access in such cases would have to be fairly
limited (library use? campus use?) to meet the conditions of fair use.

Here's where my cynical comment comes in: there is no stipulation in
this part of law that differentiates between feature films and
everything else. I know that Jessica will blow a rod on this, but I
think it's true. The reason most of us don't even vaguely consider
doing this is neither technological nor legal...it's because studios
have more muscle and are more likely to test the case than
doc/education film folk...

This is an interesting discussion line...I think, however, that
apples and oranges are being banged together. Wonder, though, if
what's being talked about in this thread is two, possibly three,
distinct types of use: 1. digitization of standing collections of
materials in a library's catalog--whole works, in other words 2)
digitization of materials put on course reserve (either in part or in
whole) 3) digitization of materials used in synchronous, distance
classroom instruction (in part or in whole). There's obviously
overlap between these three... Obviously, the digitization of
standing collections requires securing a license to do so (unless
Section 108 is invoked). Course reserve materials...well, I think
there's a tendency to want to apply the same types of criteria that
are applied in print reserves (spontaneity, short term retention,
limited access...etc.) Not sure this flies, really. As for
materials required for synchronous teaching in distance ed...TEACH
pretty clearly limits its allowances to portions not wholes...

The short of it is that while I'll go to the battlements for the fair
use right to digitize and use reasonable portions of works in
connection with learning management systems, classroom teaching,
student and faculty publication, and the like, I can't really see any
fair use justification for digitizing and/or delivering WHOLE works
in any of the above contexts without permission/license.

Gary

>Just curious Gary, irregardless of legal might of a distributor
>do you really think "Fair Use" covers an entire work ? if so
>Why wouldn't educational institutions be able to do pretty much
>what they wanted copying & using whole films books etc and why
>would the "time" have been included in the criteria?
>
>
>On 2/22/06 12:51 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:
>
> > OK...I've kept atypically mum on this issue, but here goes (I'm in
> > full cynical mode this a.m.)
> >
> > The bottom line re the application of fair use tests may have nothing
> > to do with any of the stuff being talked about here: the bottom line
> > to consider in applying the litmus and pushing the envelope (how's
> > that for mixed metaphor?) is copyright holder clout and intellectual
> > property vigilance. Let's face it: there IS no difference at all
> > (nothing whatsoever in the law that makes any distinction) between
> > Disney and small fry doc distributor when it comes to applying fair
> > use tests. The reason we balk at even thinking about the former when
> > it comes to claiming fair use or other rights afforded under the law
> > (such as Section 108 duplication rights) is the economic might and
> > big legal staffs of the studios. (Jessica, I love you, but that's
> > the way it is). Conversely, there is no difference in the obligation
> > of the user to pay close attention to the potential market impact of
> > our actions, regardless of the nature of the content.
> >
> > Gary
> >
> >
> > At 07:58 AM 2/22/2006, you wrote:
> >> All,
> >>
> >> What are others' thoughts about fair use and weighing of the 4 factors?
> >> Jessica seems to believe that if one factor weighs against the use (I
> >> would not call that a violation), then that nixes fair use. This does
> >> not seem a widely held conviction to me (nor supported by the law), but
> >> I wanted to check with others.
> >>
> >> I do agree with her point that the digitizing, or using of borrowed
> >> copies for fair use purposes would be a problem. However, if one weighs
> >> each case individually, as one should, then this would weigh against the
> >> effect of the use, and might tip the scales against fair use.
> >> Otherwise, the use would be identical, in effect, as it would were the
> >> item owned by the library and just put on reserve. My sense is that
> >> effect is really the critical factor in this debate (for streaming
> >> entire films as long as the use is limited to a class or a restricted
> >> population for educational purposes and is password protected and
> >> streamed). If the use negatively affects the copyright holder, it is
> >> probably not a fair use. However, in many cases I don't see that
> >> negative effect (and have yet to understand what it would be, except for
> >> in the situation Jessica described with not owning the copy).
> >>
> >> 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 Susan
> >> Albrecht
> >> Sent: Wednesday, February 22, 2006 7:56 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
> >>
> >> ************************************************************************
> >> *********
> >> "If you choose not to decide, you still have made a choice."--Neil Peart
> >> ************************************************************************
> >> *********
> >>
> >>
> >> _______________________________________________
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> >> Videolib@library.berkeley.edu
> >> http://www.lib.berkeley.edu/mailman/listinfo/videolib
> >>
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> >
> > Gary Handman
> > Director
> > Media Resources Center
> > Moffitt Library
> > UC Berkeley
> > ghandman@library.berkeley.edu
> > http://www.lib.berkeley.edu/MRC
> >
> > *****
> >
> > "In societies where modern conditions of production prevail,
> > all of life presents itself as an immense accumulation of
> > spectacles."
> > --Guy Debord
> >
> >
> > _______________________________________________
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> > 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
>
>
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Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley
ghandman@library.berkeley.edu
http://www.lib.berkeley.edu/MRC

*****

"In societies where modern conditions of production prevail,
all of life presents itself as an immense accumulation of
spectacles."
--Guy Debord

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