New tool for fu analysis: http://copyrightconfusion.wikispaces.com/Reasoning
Important reminder from a discussion thread in CIP
Of course every institution has to decide for itself how much risk it can tolerate in order to vindicate a principle (and serve its mission!), but the principle of fair use is extremely important for scholarship and teaching. The idea that risk of lawsuits should always be reduced to zero by obtaining permissions is extremely dangerous and could do great harm. Educational institutions (*all *institutions) take reasonable legal risks all the time, risks that are justified by sufficiently strong countervailing priorities and interests. There is no good reason to treat copyright any differently than we treat other areas of law, which are inevitably subject to uncertainty and risk.
I love open access, CC licensing, and the like, but to treat
copyright-encumbered culture as if it doesn't exist.to leave it out of our lectures, our scholarship, etc..would be a huge injustice to culture. Maybe I've misunderstood Robert, but just in case I haven't, I wanted to make that point!
Best,
Brandon
Brandon Butler | Director of Public Policy Initiatives | Association of
Research Libraries | brandon@arl.org | @ARLpolicy | w: 202.296.2296 x156 |
1 . SOURCE COPY IS MADE FROM BROADCAST
A faculty member has been using a VHS copy of a documentary film recorded from public broadcast for over 10 years in a face-to-face classroom. Can it be copied to DVD?
Despite it's being absent from the language of Title 17, I do believe that this is where the idea of 'spontaneity' can be applied to fair use, and only very specifically. This type of recording can be used for a limited time and not for more than one semester. The heart of my reasoning is the question: is the source a legally obtained copy? While it is legal to record from broadcasts (Betamax case, 1984), it is not reasonable to then use that copy in perpetuity when the media is available for purchase. If the media is unavailable, then an argument could be made that the recording is rare and should be preserved for scholarly use.
The media is in this case $150 for a DVD, and the question of whether the media is replaceable for a reasonable price is moot, because the source is not, in this context, a legally obtained copy.
The copy really should not have been used as it has for the past decade, and the fact that it has in no way sets a precedent that copying it would be ok.
Title 17 §110(1):
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
Comment on Guidelines by Brandon Butler:
"While the preference for certainty is understandable, it is widely acknowledged that the various guidelines have done much more harm than good. They have introduced arbitrary numerical limitations where fair use is meant to be flexible and case-specific. They have created pseudo-requirements—such as the Classroom Guidelines’ “brevity,” “spontaneity,” and “cumulative effect”—which are not in fact requirements of the law. Most importantly, guidelines negotiated to describe a minimum “safe harbor” have been mischaracterized over and over as the outer limits of fair use."
UC System Fair Use Guidelines good processing of steps to compliance, but not organized well.
Triangle Research Libraries Network's Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups, which contains a 4-Factor analysis.
http://www.trln.org/IPRights.pdf
They use '... a mix of good faith permission seeking, openness to notices from concerned rights holders, and a traditional four-factor fair use analysis, TRLN was able to find a comfortable level of risk given the extraordinary value of their digitization project." B.Butler
The following statement by faculty in response to the UCLA streaming lawsuit is instructive to the new state of online education.
UCLA faculty principles on the use of streaming videos
Bullfrog Films License Agreement
exerpt: How can this be legal?
8. ALTERATIONS Customer shall exhibit each
Program in its entirety only. Customer shall not cut
or alter the Programs or otherwise tamper therewith
and in no event shall the Programs be exhibited
without the complete copyright notices and/or credits
contained therein.