Re: [Videolib] question on copyrights

* (clarkjc@jmu.edu)
Thu, 23 Feb 2006 08:17:39 -0500

A very pointed challenge on the issue of whole works and fair
use is this:

Read the relevant criterion in section 107. It's:

"(3)
the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; [...]"

Now, nearly every time I can recall educators' and even IP
lawyers' interpretations of fair use criteria for public
academic consumption, this criterion is paraphrased. Something
like: "the substantiality and amount of the work being used
has to be taken into consideration".

But this sidesteps a strict reading of the language above.
Both "amount" and "substantiality" stand in relation to "of
the portion".

Unless you can find a reasonably common definition of
"portion" that can mean the whole thing, instead of some part
of something, this strikes me as a ceiling. And yet there's
doubtless copyright law decisions with FU affirmations that
still involve using entire works. The Kelly v. Arribasoft case
involved thumbnails of entire photo works offered for
sale--though one could argue that low-res repros mean that on
a secondary level of utility, the "whole" work isn't being
copied. And if, as I suggested, Google print program defense
holds water, their copying of whole works is conditioned by
the fact that they're not going to make them available. It's
like a scholar who may copy entire rare works for research
study, but only publish writings that include quotations from
and references to them.

Jeff

---- Original message ----
>Date: Wed, 22 Feb 2006 13:00:20 -0800
>From: Gary Handman <ghandman@library.berkeley.edu>
>Subject: Re: [Videolib] question on copyrights
>To: videolib@library.berkeley.edu
>
>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
>> >>
************************************************************************
>> >> *********
>> >>
>> >>
>> >> _______________________________________________
>> >> 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
>> >
>> > 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
>> >
>> >
>> > _______________________________________________
>> > 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
>>Videolib@library.berkeley.edu
>>http://www.lib.berkeley.edu/mailman/listinfo/videolib
>
>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
>
>
>_______________________________________________
>Videolib mailing list
>Videolib@library.berkeley.edu
>http://www.lib.berkeley.edu/mailman/listinfo/videolib

===========
Jeff Clark
Director
Media Resources MSC 1701
James Madison University
Harrisonburg VA 22807
clarkjc@jmu.edu (email)
540-568-6770 (phone)
540-568-7037 (fax)
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