Re: Copyright issue: short video excerpts

Dan Donnelly (d-donn@maroon.tc.umn.edu)
Wed, 13 Aug 1997 18:29:59 -0500

Gary,

Questions come to mind whenever copyright comes up on the list. Thanks for the chance to pose them along with some thoughts on possible answers.

What can be construed as classroom teaching? It seems to me that it is reasonable to extend the definition of the classroom to include a controlled environment like a media listening/viewing lab when it is either impractical or impossible to integrate the media component of teaching and learning into the actual classroom. Say something like the class cannot be scheduled in a room outfitted with VCR playback equipment.

I'm also not sure that it is necessary for a teacher to be present in a classroom environment. It may be sufficient only that students be there. Students who are indeed enrolled in some formal curriculum which uses the presented media material for class assignment or as illustrative example for lecture. The face-to-face activity is the presentation and reception of the material.

I know I may be stretching things a bit on the definition of a classroom but one guiding principle for me has been the language used in the Sony case (not teaching related, I know) that reminds plaintiff that what the copyright law seeks is some "equitable rule of reason" to govern copyright. Is it really unreasonable for a teacher to take a bit less fundamental view of section 107 by saying the classroom might at times be outside the walls of the regularly scheduled space? I might add that I don't read the "face to face" language in section 107 but indeed I think it does appear in House Report *guidelines* that accompanied the 1976 Act and it may also appear elsewhere in the law, but with respect to section 107, is there a face-to-face requirement?

As for multiple copies. I would be careful not to make multiple copies when the numbers of students who need to get at the tape don't warrant it or if the listening/viewing area can't really support multiple users of the same material. What is a number of students which might warrant multiple copies? I'm not sure. It might depend on just how intensely the students do their work. I've had courses using videos with registrations well over 100 where one copy meets demand adequately and other courses where one copy can't meet the needs of thirty students. Timing of assignment and due dates come into play here.

I think the questions surrounding fair use aren't always clearly answered and basing copyright compliance in fair use requires looking at each individual request and the circumstances surrounding it ( e.g. a teacher wants to make a video of short clips, may she do so, may the video be placed on reserve in the library?) to determine the particular way in which some fair use assertion might work. Sometimes multiple copies may be OK, perhaps other times, not. This case by case examination really makes fairs use a cumbersome means to protect yourself from copyright infringement and is one reason guidelines seem to be popular.

At any rate, that big *may* is really a big *may*. I can't and no one can say for sure that any fair use assertion will prevail in court. I hope I don't ever find myself in a position to learn, for sure, in litigation. But I do think that a reasonable interpretation of section 107 might have a chance and consequently find myself a bit on the aggressive side of fair use assertion to support teaching and learning in my work.

At 03:03 PM 8/13/97 -0700, you wrote:
>Jeff--
>
>While making short extracts of a film for use in face to face teaching MAY
>(that's MAY!) be allowable under fair use provisions, making duplicates
>of this clip for close study is undoubtedly not...
>
>Gary Handman
>Director
>Media Resources Center
>Moffitt Library
>UC Berkeley, CA 94720-6000
>510-643-8566
>ghandman@library.berkeley.edu
>
>
Dan Donnelly
University of Minnesota Library
Digital Media Center
d-donn@tc.umn.ecu
http://www.umn.edu/dmc/