RE: Copyright - copying for preservation?

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

I can't agree with Randal that "Copyright doesn't allow converting
"non-library" videotape to another format for preservation or convenience
purposes."  The best we can say, I think, is that the situation is not clear.

Obviously you will not be relying on section 108 if you choose to reformat for
these purposes.  Nor can you rely on a specific "orphan works" law, as Randal
points out.  But section 107, fair use, may allow reformatting in some
circumstances.  Fair use is, we all know, highly dependent on the specific
facts, and it is possible to imagine facts that would support a fair use
analysis.

You mention the question of whether or not "the content is available in the
marketplace."  This is a good place to start; I would not rely on fair use,
personally, if a digital version of the film could be purchased.  If a digital
version is not available, you could also improve the fair use argument, in my
opinion, by taking steps to ensure that you do not make two copies available
where previously there had been only one. Restricting the copies to clearly
educational purposes would also help.

Sometimes people say that fair use never supports copying an entire work, but
this is demonstrably untrue.  Two of the most famous Supreme Court decisions
on fair use -- the Sony case and Campbell v. Acuff-Rose -- both involved all
of the works in question (or nearly all, in the case of the parody of "Oh,
Pretty Woman" in Campbell).  The Sony case especially, with its emphasis on
time and space shifting (rather than transformation), seems useful for your
argument.

I can't tell you if the specific reformatting you are considering is or is not
fair use.  But I believe that a reasonable argument for reformatting can be
made in some cases.  In any case, it seems that it is fair use you would have
to rely on; no other copyright exceptions really gets you where you want to
be, and fair use was developed for precisely those kinds of situations.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@xxxxxxxx


-----Original Message-----
From: Randal Nieuwsma [mailto:Nieuwr@xxxxxxxxxx]
Sent: Tuesday, August 30, 2011 12:13 PM
To: Charles P. Wiggins; digital-copyright@xxxxxxxxxxxxxx
Subject: Re: Copyright - copying for preservation?

Charles,
 (Just my opinion)
 When a person or school purchases a videotape or dvd, they become the owner
of the plastic item and an implied license to view the contents as long as it
works. What they do not acquire is the right to use it eternally. When it
wears out or breaks, it is over. In the old days of 16mm film, people were
more accepting of that concept since they could understand that replacing film
was expensive. Now that duplicating and digitizing video is easy and common,
people assume that it is legal.
 Copyright doesn't allow converting "non-library" videotape to another format
for preservation or convenience purposes, eventhough it is easy to do.
 The given reason of wanting to convert it to preserve the content of a
non-library videotape is understandable, but not clearly legal, yet. It is not
an obsolete format, yet, since it will still be a few years before you just
plain cannot get a vhs player. Also, I hope for, but am not aware of, legal
progress on Orphan Works legislation to make copying old tape legal or at
least easier.
Randy

>>> "Charles P. Wiggins" <cpwiggins@xxxxxxxxxxxxxx> 8/29/2011 11:22 AM
>>> >>>
Hello all,

I have a dean that has requested that some VHS tapes be converted to DVD to
preserve the content. Assuming that the content is no longer available in the
marketplace, I know that Section 108
(http://www.copyright.gov/title17/92chap1.html#108) allows copying and
conversion in the library setting for preservation purposes, but these are not
library materials.  They are owned/used in the department exclusively.

Has anyone ever heard of this provision or another part of the code being used
to copy and convert at an educational institution, but outside the library
setting?

Thanks,
Charles



Charles P. Wiggins
Director of Library Services
Isothermal Community College
P.O. Box 804
Spindale, NC 28160
828-286-3636 ext. 216

cpwiggins@xxxxxxxxxxxxxx



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