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

ghandman@library.berkeley.edu
Wed, 27 Jun 2007 14:42:00 -0700 (PDT)

Hi

I'd have to dig up specifics (i.e. chapter and verse in 117), but the
issue of "spontaneous" use informs much of the copyright law regarding
teaching/learning uses of media of all kind (for eg: print reserve
materials). The notion is that the requirement to secure license or
permission for copyrighted works would hinder the process of teaching or
would prevent useful discovery and use of copyrighted material for a
particular course. If a work is used over and over, semester to semester,
the "spontaneous" angle is pretty much shot. Although this concept is
addressed for print and not media in the law, I think it would probably
apply. Use it repeatedly and the potential market impact increases...

As to your second point: I am personally of the mind that use of clips
either IN or OUT of class (synchronously or asynchronously) may fall under
Fair Use, if it falls anywhere at all...

Again, no one knows any of this for certain.

Gary

> 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.
>

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.