RE: [Videolib] question on copyrights

fpoole@udel.edu ("fpoole@udel.edu")
Wed, 22 Feb 2006 15:46:53 -0500 (EST)

Remember videolibbers, most of us aren't lawyers, we just play one on
TV (and on email.) If memory serves me, a real copyright lawyer once
told an audience I was in that Fair Use isn't a law. But as a media
librarian from a major university with deep pockets (and in-house counsel)
said recently about streaming video without being granted permission from
the copyright owner, "Your mileage may vary depending..."

Francis Poole
Instructional Media Department
University of Delaware Library

On Wed, 22 Feb 2006, Brewer, Michael wrote:

> 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 libraries/archives to make preservation copies for UNPUBLISHED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
>
> ************************************************************************
> ****
> *****
> "If you choose not to decide, you still have made a choice."--Neil Peart
> ************************************************************************
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> *****
>
>
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