RE: [Videolib] The meaning of "distance education"

Brewer, Michael (brewerm@u.library.arizona.edu)
Wed, 27 Jun 2007 13:17:33 -0700

Gary,

I'm not sure repeated use is necessarily a problem (depending on the
situation). It just needs to be taken into consideration as part of the
fair use justification - i.e. would the continued use negatively impact
on the market or potential market for the content enough to weigh
against the factors that weigh toward fair use?

A more philosophical question: if copyright exemptions (such as fair
use) are for the public good, education, etc., then why should a faculty
member be able to make and show clips in class, but not out of class?
Does the location or means by which the clips are shown somehow change
the good it does the public, or the amount of education/knowledge that
is imparted?

How is the owner of copyright impacted differently by these two
scenarios (assuming that security systems are in place to inhibit the
copying or unauthorized use of delivered files)? If there is no change
in the purpose, nature, effect on the copyright holder or amount, why
would the legitimacy of the use change?

mb

Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library

brewerm@u.library.arizona.edu

-----Original Message-----
From: owner-videolib@lists.berkeley.edu
[mailto:owner-videolib@lists.berkeley.edu] On Behalf Of
ghandman@library.berkeley.edu
Sent: Wednesday, June 27, 2007 12:02 PM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] The meaning of "distance education"

I don't know where you're getting this stuff, Jessica

There is NOTHING in the law that indicates that Fair Use is tied up with
transformative use...NOTH-ING! I'm getting blue in da face stating
this:
Fair Use is a fairly abstract concept that dates back to British Common
Law and was subsequently adopted by the drafters of the US Constitution.

It allows the use of copyrighted works in certain contexts. These
contexts are NOWHERE absolutely defined, quantified,
specified...although
the quoting of portions of copyrighted works in the context of
criticism,
parody, etc. is specified. Fair Use allows the uses of copyrighted
works
in the service of the public or cultural good...stuff like education and
scholarship, for eg. I get reaaaaaalllly nervous when content providers
try to nail FAIR USE down to specifics...the concept is, by intent,
vague...

The issue you're really talking about is the fact that showing a whole
work seems to potentially fly in the face of two of the four tests of
fair
use (see
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test):
Extent of the portion used and potential impact on the market.

In response to Michael B's point about situations in which Fair Use
could
be invoked for digital delivery of copyrighted works for course use...I
believe there really isn't much wiggle room. It's conceivable that
short
portions of works could be excerpted, digitized, and delivered (in
person
on on demand) to a specific class for a semester under the banner of
FU...trouble is that in most instances, if faculty invest the time and
energy into identifying their clips and getting them digitized, they're
almost certainly going to want to use these repeatedly. And then adios,
Fair Use.

Gary

> Well I kind of give up on this Michael. I don't know the most rabid
"fair
> use" proponent who suggest it can ever cover an entire film. As I have
> repeatedly pointed out and by ALL means check with a lawyer " Fair
Use" is
> for a "transformative " use meaning you are using something to create
a
> NEW
> work thus using a portion of something in book, film, piece of music
etc
> to
> create a new film, book,piece of music or lecture. There has never
been
> any
> attempt by anyone ( other than you and Gary trying to upset me) that
it
> would allow you to use a complete feature length film. If if in fact
did
> virtually everything we discuss would be irrelevant.
>
> Every copyright site including the ones I mentioned which are run by
> academic institutions not distributors refers to using a REASONABLE
> portion
> of a work in the context of both Fair Use and the Teach Act.
>
> As near as I can tell under the idea that "Fair Use" would basically
cover
> anything you ever wanted to use in a class or stream on line at a
> university
> there would be no copyright at all
>
> You might mention that to Kinko's.
>
>
> On 6/27/07 1:46 PM, "Brewer, Michael" <brewerm@u.library.arizona.edu>
> wrote:
>
>> There are few restrictions actually put on Fair Use in the law. Only
>> examples are provided. Guidelines have been drawn up for various
uses,
>> but they are guidelines only. We have some case law to look at as
well,
>> but that, too, is all over the place as far as the context and types
of
>> uses. Streaming for these purposes is a new area that has not really
>> been looked at and I think we can all agree that TEACH has been a
>> failure.
>>
>> I think we need to depart from TEACH and begin discussing what sorts
of
>> uses we feel are fair as far as digital delivery for course use. I
do
>> think that nothing here is terribly clear and that the effect on the
>> market for the content has to be looked at very closely. The
relative
>> "fairness" of a current use could easily change in the future as more
>> content providers create solid business models for licensing and
>> delivering content for these educational purposes.
>>
>> mb
>>
>> Michael Brewer
>>
>> Slavic Studies, German Studies & Media Arts Librarian
>>
>> University of Arizona Library
>>
>> brewerm@u.library.arizona.edu
>>
>>
>> -----Original Message-----
>> From: owner-videolib@lists.berkeley.edu
>> [mailto:owner-videolib@lists.berkeley.edu] On Behalf Of Jessica
Rosner
>> Sent: Wednesday, June 27, 2007 10:01 AM
>> To: videolib@lists.berkeley.edu
>> Subject: Re: [Videolib] The meaning of "distance education"
>>
>> Well "Fair Use" has it's own separate restrictions . I don't think it
>> has a
>> ton of relevance to streaming & downloading material since you would
>> most
>> likely have issues with using more than a portion of a work and
>> impacting
>> its commercial value but I suppose one could come up with some
scenarios
>> under which it could apply and be useful
>> What matters most to me is that both Distance Education and Fair Use
>> clearly
>> forbid the use of lengthy works like my beloved feature films. I
think
>> if
>> you go to both IUPIPI and NCSU copyright web sites you will find
pretty
>> detailed info on both uses and limitations of "Fair Use" and The
Teach
>> Act.
>>
>>
>> On 6/27/07 12:22 PM, "Brewer, Michael"
<brewerm@u.library.arizona.edu>
>> wrote:
>>
>>> I remain unconvinced that TEACH restricts to synchronous (but
>> distance)
>>> teaching (but am still quite willing to listen to an argument based
on
>> the
>>> text of the law). That said, I'm not sure that it really matters. I
>> firmly
>>> believe that one can make a strong fair use claim for the kind of
uses
>> that
>>> are being talked about below. If there are those in libraries that
>> believe
>>> otherwise, I'd like to hear their reasoning as to why these uses
would
>> not be
>>> fair.
>>>
>>> mb
>>>
>>> ________________________________
>>>
>>> From: owner-videolib@lists.berkeley.edu on behalf of Gary Handman
>>> Sent: Wed 6/27/2007 8:08 AM
>>> To: videolib@lists.berkeley.edu
>>> Subject: Re: [Videolib] The meaning of "distance education"
>>>
>>>
>>>
>>> you go, girl!
>>>
>>> Gary
>>>
>>>
>>> At 06:58 AM 6/27/2007, you wrote:
>>>> X-Sieve: CMU Sieve 2.3
>>>> X-Modus-BlackList: 198.86.245.216=OK;cmhealy@waketech.edu=OK
>>>> X-Modus-Trusted: 198.86.245.216=YES
>>>> X-Mailer: Novell GroupWise Internet Agent 7.0
>>>> Date: Wed, 27 Jun 2007 09:58:16 -0400
>>>> From: "Ciara Healy" <cmhealy@waketech.edu>
>>>> To: "videolib@lists.berkeley.edu" <videolib@lists.berkeley.edu>
>>>> Subject: Re: [Videolib] The meaning of "distance education"
>>>> X-Ucb-Scan-Signature: db6d6a1bec3f414eb93f42a87d6f2177a02457ec
>>>> X-Ucb-Spam: Gauge=IIIIIII, Probability=7%, Report=''
>>>> X-Ucb-Notice: This message has been processed by a spam tagging
>> system.
>>>> See http://mailinfo.berkeley.edu/ for more information.
>>>> Sender: owner-videolib@lists.berkeley.edu
>>>> Reply-To: videolib@lists.berkeley.edu
>>>>
>>>> For the film distributors among us rather than the people who work
at
>>>> colleges:
>>>>
>>>> Please note the difference between synchronous and asynchronous
>>>> distance education. In asynchronous education students never come
to
>> the
>>>> campus and may take the class from any where (geographically
>> speaking)
>>>> but there is no specified class meeting time where they would all
>> watch
>>>> parts of a movie together via their respective computers. So an
>>>> asynchronous class via, say, Blackboard does not have the option to
>> use
>>>> downloaded media according to the TEACH act on this interpretation
>>>> because the class is not meeting in real time? Some downloaded
visual
>> or
>>>> audio materials would not be supplemental like reserve items. They
>> would
>>>> be part of the curriculum for an asynchronous distance education
>> class.
>>>> It is also the case that those kinds of classes delivered via
>>>> Blackboard, might want to put things on reserve as well that are
>>>> supplemental to the current module or discussion. They too would
not
>>>> have the right to make media available for download on this
>>>> interpretation, according to Dr.Crews. That pretty much knocks out
>> the
>>>> instructor at my college who teaches music appreciation and wants
his
>>>> class to be fully hybrid but is asking me to help him deliver music
>> and
>>>> parts of Ken Burns' Jazz series to his students via Blackboard. (He
>> is
>>>> BFF with the Distance Education Lady.) It knocks them all out in
fact
>>>> because we all only use Blackboard here. Asynchronously.
>>>>
>>>> If the TEACH act was formulated with the definition of distance
>>>> education as a synchronous teaching/learning during a certain class
>>>> meeting via computer, then that happens less than you might think.
>>>>
>>>> A lot more classes are these asynchronous things where it is more
>> like
>>>> a correspondence course or a self-paced class that you take on you
>> own
>>>> with all of the course materials found on the Blackboard (or Web CT
>> or
>>>> whatever) site at once or put up successively each week. Contact
with
>>>> the instructor is via e-mail (asynchronous) or sometimes live chat
>>>> (synchronous) or you could call them on the phone (synchronous) but
>>>> usually it is just via the discussion boards (asynchronous) on the
>>>> Blackboard site. (Blackboard is password protected and available to
>> only
>>>> the students enrolled in that class. Print material can be
downloaded
>> or
>>>> persistent links to articles are provided to supplement the
>> textbook.)
>>>> VIDEOLIB is intended to encourage the broad and lively discussion
of
>>>> issues relating to the selection, evaluation,
>> acquisition,bibliographic
>>>> control, preservation, and use of current and evolving video
formats
>> in
>>>> libraries and related institutions. It is hoped that the list will
>> serve
>>>> as an effective working tool for video librarians, as well as a
>> channel of
>>>> communication between libraries,educational institutions, and video
>>>> producers and distributors.
>>>
>>> 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 is intended to encourage the broad and lively discussion of
>> issues
>>> relating to the selection, evaluation, acquisition,bibliographic
>> control,
>>> preservation, and use of current and evolving video formats in
>> libraries and
>>> related institutions. It is hoped that the list will serve as an
>> effective
>>> working tool for video librarians, as well as a channel of
>> communication
>>> between libraries,educational institutions, and video producers and
>>> distributors.
>>>
>>>
>>>
>>> VIDEOLIB is intended to encourage the broad and lively discussion of
>> issues
>>> relating to the selection, evaluation, acquisition,bibliographic
>> control,
>>> preservation, and use of current and evolving video formats in
>> libraries and
>>> related institutions. It is hoped that the list will serve as an
>> effective
>>> working tool for video librarians, as well as a channel of
>> communication
>>> between libraries,educational institutions, and video producers and
>>> distributors.
>>
>>
>>
>> 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 is intended to encourage the broad and lively discussion of
>> issues relating to the selection, evaluation,
acquisition,bibliographic
>> control, preservation, and use of current and evolving video formats
in
>> libraries and related institutions. It is hoped that the list will
serve
>> as an effective working tool for video librarians, as well as a
channel
>> of communication between libraries,educational institutions, and
video
>> producers and distributors.
>>
>> VIDEOLIB is intended to encourage the broad and lively discussion of
>> issues
>> relating to the selection, evaluation, acquisition,bibliographic
>> control,
>> preservation, and use of current and evolving video formats in
libraries
>> and
>> related institutions. It is hoped that the list will serve as an
>> effective
>> working tool for video librarians, as well as a channel of
communication
>> between libraries,educational institutions, and video producers and
>> distributors.
>
>
>
> 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 is intended to encourage the broad and lively discussion of
> issues relating to the selection, evaluation,
acquisition,bibliographic
> control, preservation, and use of current and evolving video formats
in
> libraries and related institutions. It is hoped that the list will
serve
> as an effective working tool for video librarians, as well as a
channel of
> communication between libraries,educational institutions, and video
> producers and distributors.
>

Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley

510-643-8566
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 is intended to encourage the broad and lively discussion of
issues relating to the selection, evaluation, acquisition,bibliographic
control, preservation, and use of current and evolving video formats in
libraries and related institutions. It is hoped that the list will serve
as an effective working tool for video librarians, as well as a channel
of communication between libraries,educational institutions, and video
producers and distributors.

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.