Re: individual patrons & pub. perf. rights (fwd)

Kristine R. Brancolini (brancoli@indiana.edu)
Thu, 24 Oct 1996 10:15:44 -0500 (EST)

After seeing Randy's comment in the latest issue of _Video Librarian_, I
wondered how many other librarians noticed it. Randy is incorrect.
Individuals viewing in carrels in a public library is still a gray area.
I was dismayed to see Wendy's comments below, because the situation is
much clearer for an academic institution--school or academic library.
There are strong opinions among the legal community that carrel viewings
fall within fair use in academic libraries. The latest edition of the ALA
Copyright Primer (1995) supports this position and cites recent articles on
the topic. See _Copyright Primer for Librarians and Educators_, second
edition, by Janis H. Bruwelheide (Chicago, ALA, 1995), pp. 53-63. Janis
relies heavily on these two articles:

Cochran, J. Wesley. 1993. "Why can't I watch this video here?
Copyright confusion and performances of videocassettes and videodiscs in
libraries." _Hastings Communications and Entertainment Law Journal_,
15:837-92.

Heller, James S. 1992. "The performance right in libraries: Is there
anything fair about it?" _Law Library Journal_, 84:315-40.

These authors believe some public library carrel viewing may fall
within fair use, but they are both adamant that this practice carries no
real legal risk for the library. Copyright holders are not suing public
libraries that allow carrel viewing. The law is too murky on this point
and the payoff would be minimal. Most public library patrons take the
videos home.

In an academic library, I believe we do our users a disservice when we
refuse to buy videorecordings unless they have public performance rights.
There is no reason to be this restrictive. I wouldn't have a
feature film collection if I insisted on public performance
rights. Furthermore, I believe it is a waste of the taxpayers' money and the
students' money to pay for public performance rights this library does not
need. Consequently, I rarely buy public performance rights if I can buy
a home video. I recently cancelled an order for a video from Cinema Guild
because they would not sell me the home video version of _USA vs. Tokyo Rose_.
The home video costs $95, the public performance video costs $295. It's a
waste of $200.

Regarding public libraries, I have asked on this listserv and the
copyright listserv, cni-copyright, if any public library has ever
received a cease-and-desist letter for allowing carrel viewing. Many public
libraries allow this practice and I have yet to hear from anyone who has been
asked by a copyright holder to stop. I think we should take the liberal
approach until we are told to stop--and then consider our legal options.
We would not be sued without receiving the opportunity to change our
policy. We have purchased these materials with public funds. The public
deserves access.

Kristine Brancolini
Indiana University Libraries
brancoli@indiana.edu

On Thu, 24 Oct 1996, Wendy L. Young wrote:

> Our library has a file a foot thick on this one...and have chosen to
> abide by the stricter interpretation to cover ourselves. We do not
> purchase any videotapes without public performance rights. As a
> state agency with public funding it's necessary for us to take the
> safe route. We have not found it a problem to purchase videotapes in
> the manner and it seems to cover us on all bases at present. Hope
> this wells.
>
>
>
>
> Date: Wed, 23 Oct 1996 17:52:21 -0700
> Reply-to: videolib@library.berkeley.edu
> From: GHUGGINS@kckpl.lib.ks.us (Gary Huggins)
> To: Multiple recipients of list <videolib@library.berkeley.edu>
> Subject: individual patrons & pub. perf. rights
>
> Has anyone done any research on the issue of public performance rights and
> individual, in-library carrel video viewing? In a recent "Video Librarian" Randy
> Pitman states categorically that "a patron cannot, I repeat, cannot, watch a
> video that does not include public performance rights on library premises"; he
> also mentions "the famous ALA interpretation of copyright law which argued that
> in-library carrel showings were perfectly legal".
>
> So which is it? Does it come down to which interpretation one chooses to listen
> to? I'm referring to a single patron watching a video, alone, in a setting where
> no one else can see the screen - no group showings.
>
> Is anyone aware of a final word on the subject? And can anyone whose library has
> rejected the ALA interpretation in favor of a stricter application of public pe
> rformance rights give me a little information of how they've gone about it? Do y
> ou determine the rights of each film in your collection, or limit viewing to a c
> ertain number of pre-determined titles, etc.?
>
> Thanks -
>
> Gary Huggins
>
> gary l. huggins phone: 1-913 551-3280 ext. 210
> circulation assistant
> kansas city, kansas public library email: ghuggins@kckpl.lib.ks.us
> 625 minnesota avenue
> kansas city, ks 66101-2805
>
> Wendy L. Young
> Media Services Librarian
> UW-Milwaukee, Golda Meir Library
> 2311 E. Hartford Avenue
> Milwaukee, WI 53211
> 414-229-4673
>
> "May the force be with you...."
>