Re: [Videolib] classroom use of "home and community viewing"

From: John Vallier <>
Date: Wed Jul 29 2009 - 10:11:36 PDT

I agree with Michael, and so do a lot of other people/orgs. Fair
Use's 3rd factor does not need to be satisfied in order for a use to
be considered fair under the law. Music librarians have been
providing access to complete works via streaming reserves for years:
see MLA's Statement on the Digital Transmission of Electronic
Reserves - - "Digital copies may be made of whole
movements or whole works."

For a more general statement see ARL's "Applying Fair Use in the
Development of Electronic Reserves Systems" - -
"Because the amount that a faculty member assigns depends on many
factors, such as relevance to the teaching objective and the overall
amount of material assigned, librarians may also consider whether the
amount, even the entire work, is appropriate to support the lesson or
make the point. "

On the publisher's side of the discussion, AAP, AAU, & AAUP conceded
that displaying whole works within the context of teaching/research
oriented campus settings may be fair use: see Campus Copyright Rights
and Responsibilities - - "The larger the portion
of a work used, the less likely it is to be fair use, although in
appropriate circumstances (e.g., research, classroom display or
distribution, parody) use of an entire work ... may be a fair use."

Finally, see Harvard's "Copyright and Fair Use: A Guide for the
Harvard Community" - - "Also important in
applying the third factor is the nexus between the purpose of the
fair use and the portion of the copyrighted work taken. The extent of
permissible copying varies with the purpose and character of the use.
Taking more of the copyrighted work than is necessary to accomplish
the fair user’s salutary purpose will weigh against fair use. In some
cases, the fact that the entire work—for example, an image—was needed
to accomplish the fair use purpose has led the court to hold that the
third factor was neutral, favoring neither the copyright holder nor
the putative fair user."

By dismissing Fair Use in favor of (for example) purchasing blanket
PPR licenses for classroom streaming, librarians are further eroding
section 107. I don't know why these Videolib discussions tend to
dismiss Fair Use (unlike similar discussions on the Music Library
Association list). Is it the presence of industry reps on the list?
Is it the video librarian's commuinty early adoption of CONFU?
Whatever the case, it's has a chilling and disorienting effect on our
understanding of the issue.

John Vallier
Head, Distributed Media Services
University of Washington Libraries | tel. 206-616-1210

> On Tue, Jul 28, 2009 at 9:21 PM, Brewer, Michael <
>> wrote:
>> That said, I do still think that this wording does not mean that
>> only less
>> than the whole can be used. The court cases and practices I sited
>> before
>> make it pretty clear that it can. My reading, and I assume the
>> reading of
>> the judges in those cases, is that "portion used in relation to
>> the whole"
>> here is taken to mean "what percentage of the work is being used?"
>> I'd like to know more about how judges have written about this in
>> their
>> rulings. I'll snoop around a bit and see what I can come up with
>> and share
>> it with the list.
>> Thanks for keeping me honest!
>> mb

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.
Received on Wed Jul 29 10:11:51 2009

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