Re: Fair Use - Right of First Sale

Gary Handman (ghandman@library.berkeley.edu)
Mon, 5 May 1997 08:56:43 -0700 (PDT)

Stan...

Seems to me that some waters are being seriously muddied here. First
Sale actually has little if anything to do with Public Performance Rights.
First Sale allows a public library (or anyone else) the rights to
circulate, rent, give away legally acquired videos. The performance of works
("making the sights visible and the sounds audible" in a group venue
outside of the home) is one of the bundle of rights exclusively
(EXCLUSIVELY) held by the copyright owner. There are precious few fair
use exemptions libraries or other educational institions are granted
which would allow "performance" without securing rights from the
intellectual property owner: the ol' face to face teaching exemption is one;
the other might be--and that's a big, unlitigated "might be"--the
"performance' of videos in library carrels (i.e. viewing by one or two
individuals on-site in the library). First Sale absolutely does not
obviate the need to secure rights to show a video or film to a group in a
library.

(By the way, the "might be" statement above is based on informal opinions
offered by the late Ivan Bender--the font of all video copyright
wisdom--at an NVR-sponsored workshop a few years back. There is neither
case law nor definitive written opinion supporting or providing
strictures against the fair use viewing of videos in library media
facilities)

Cheers!

Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley, CA 94720-6000
510-643-8566
ghandman@library.berkeley.edu