Subject: RE: Copyright - copying for preservation? From: "Amalyah Keshet [akeshet@xxxxxxxxxx]" <akeshet@xxxxxxxxxx> Date: Thu, 1 Sep 2011 07:42:55 +0000 |
Probably a stupid question, but what constitutes "library" and "non-library" videotape? What is Section 108's precise definition of what a library is? I'm familiar with institutions with an "official" library plus several other informal departmental libraries (and archives). This occurred to me when reading Mr. Wiggins original enquiry: "They are owned/used in the department exclusively." That sounds like a departmental library to me. I agree that Fair Use is most likely the answer here, but I'm curious about what actually constitutes a library (archive?) in a situation like this. Amalyah Keshet Head of Image Resources & Copyright Management The Israel Museum, Jerusalem -----Original Message----- From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx] Sent: Tuesday, August 30, 2011 8:21 PM To: Randal Nieuwsma; Charles P. Wiggins; digital-copyright@xxxxxxxxxxxxxx Subject: RE: Copyright - copying for preservation? 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 E-mail correspondence to and from this sender may be subject to the North Carolina Public Records law and may be disclosed to third parties.
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