As you said - you are not a lawyer. JM
From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Patricia Aufderheide Sent: Monday, February 06, 2012 9:36 AM To: ghand...@library.berkeley.edu Cc: videolib@lists.berkeley.edu Subject: Re: [Videolib] ACRL Best Practices Thank you, Gary! I think your example of Avatar is very interesting. If I were the librarian, I would ask the professor to explain why the prof needs the entire film, and how the students will interact with the entire film to demonstrate the point. There are, for instance, hilarious mashups of Pocahantas and Avatar (just Google both names on Youtube) that accomplish that basic insight quite efficiently. I can also imagine, although just barely, a situation where I as an instructor might assign the whole film, but analytically such that I would assign any particular stretch of a film to different groups in class to tag (yes, it would be a lot easier in html5 but that's coming) for a variety of techniques/approaches, and ask each group also to critique and comment on the tagging of the others. This might mean putting up the film, but not necessarily in one whole stream. But I say this not as a lawyer but as a teacher. The point being, fair use is not a pass to use material for the same purpose as the original with a figleaf excuse (hey, I'm looking for imperialism!), but it is possible to imagine needing 100% of any work with a legitimate fair use. On Mon, Jan 30, 2012 at 11:50 AM, <ghand...@library.berkeley.edu> wrote: Thanks, Pat (and thanks again for spearheading the development of these guidelines) I am a still a bit concerned about the e-reserves section--the limitations and enhancements not withstanding. If I am reading this section correctly, almost any full-length copyrighted video work that is central to the curriculum ("the instructor's pedagogical purpose") could conceivable be digitized and streamed for use in face-to-face classroom teaching under the banner of "transformative use" (I screen Avatar in an ethnic studies class to discuss metaphors of imperialism, bingo! Transformative!) It seems to me that this particular section ignores (or at least attempt to trump) the established tests of fair use, as, for example, cases in which a content owner/provider that has an existing or potential significant economic stake in making content available online. Thanks as always for your views and input. Gary Handman > Thank you for reading these! > 1) In terms of e-reserves (section 1), it's really important to read both > the limitations and the enhancements. They qualify that general assertion, > and make clear that you need a transformative purpose, which in the case > of > e-reserves would be appropriate to the course. You can also see that there > are limitations regarding the type of material as well. And of course > appropriate amount, as the general material in the code stresses, is > always > an issue. > > *LIMITATIONS * > > Closer scrutiny should be applied to uses of content created and marketed > primarily for use in courses such as the one at issue (e.g., a textbook, > workbook, or anthology designed for the course). Use of more than a brief > excerpt from such works on digital networks is unlikely to be > transformative and therefore unlikely to be a fair use. > > The availability of materials should be coextensive with the duration of > the course or other time-limited use (e.g., a research project) for which > they have been made available at an instructor's direction. > > Only eligible students and other qualified persons (e.g., professors' > graduate assistants) should have access to materials. > > Materials should be made available only when, and only to the extent that, > there is a clear articulable nexus between the instructor's pedagogical > purpose and the kind and amount of content involved. > > Libraries should provide instructors with useful information about the > nature and the scope of fair use, in order to help them make informed > requests. > > When appropriate, the number of students with simultaneous access to > online > materials may be limited. > > Students should also be given information about their rights and > responsibilities regarding their own use of course materials. > > Full attribution, in a form satisfactory to scholars in the field, should > be provided for each work included or excerpted. > > *ENHANCEMENTS:* > > The case for fair use is enhanced when libraries prompt instructors, who > are most likely to understand the educational purpose and transformative > nature of the use, to indicate briefly in writing why particular material > is requested, and why the amount requested is appropriate to that > pedagogical purpose. An instructor's justification can be expressed via > standardized forms that provide a balanced menu of common or recurring > fair > use rationales. > > In order to assure the continuing relevance of those materials to course > content, libraries should require instructors of recurrently offered > courses to review posted materials and make updates as appropriate. > > > 2) In terms of copying to preserve (e.g. VHS to DVD), again it's important > to look at the limitations; in this area, the existence of commercial > availability is the very first reference. This is a transformative > purpose, > in the sense that this material, which had been unuseable for teaching > purposes (usually what drives such a decision is a teacher's need for > materials that are either fragile or that no longer have players in the > classroom) is made useful again. This clause in no way undercuts a > distributor's ability to offer a commercial service, and in no way does it > give librarians a blank check to copy over their collections wholesale > from > format to format. You know, most librarians don't want to spend their time > transferring material from obsolete formats, and at the end of the day > getting poor-resolution copies with limited functionality. Really. > > *LIMITATIONS*: > > Preservation copies should not be made when a fully equivalent digital > copy > is commercially available at a reasonable cost. > > Libraries should not provide access to or circulate original and > preservation copies simultaneously. > > Off-premises access to preservation copies circulated as substitutes for > original copies should be limited to authenticated members of a library's > patron community, e.g., students, faculty, staff, affiliated scholars, and > other accredited users. > > Full attribution, in a form satisfactory to scholars in the field, should > be provided for all items made available online, to the extent it can be > determined with reasonable effort. > > > > *ENHANCEMENTS:* > > Fair use claims will be enhanced when libraries take technological steps > to > limit further redistribution of digital surrogates, e.g., by streaming > audiovisual media, using appropriately lower-resolution versions, or using > watermarks on textual materials and images. > > Fair use claims will be further enhanced when libraries provide copyright > owners a simple tool for registering objections to use of digital > surrogates, such as an e-mail address associated with a full-time > employee. > > > On Thu, Jan 26, 2012 at 6:37 PM, <ghand...@library.berkeley.edu> wrote: > >> So? Has anyone had an opportunity to read em? >> >> I've had several quick reads and it seems to me that the two most >> significant principles being supported relevant to video are: >> >> 1. A fair use justification for digitizing and delivering of library >> video >> collections to classes...pretty heavy! The notion of transformative use >> comes into play--shades of UCLA! >> >> On quick reading I find this principle more than a bit problematic: it >> says >> "It is fair use to make appropriately tailed course-related content >> available to enrolled students via digital networks" >> >> What does that mean, exactly, though? A fair use claim for digitizing >> DVDs and/or vhs tapes to support specific classes, regardless of content >> type, regardless of license availability? Regardless... I feel like >> I'm >> missing something. (If Pat Aufderheide is lurking...I'd really like to >> hear her thoughts). >> >> 2. Going beyond current 108 allowances by claiming fair use for a) >> "preemptive" preservation (not simply 108's requirement that the item >> being considered for preservation must demonstrate deterioration); and >> b) >> off-premises use of preservation copies to library patrons. (I didn't >> get >> the sense that the document supports network delivery of materials made >> under 108 provisions...) >> >> I'm interested in hearing what the rest of you think... >> >> >> gary >> >> Gary Handman >> Director >> Media Resources Center >> Moffitt Library >> UC Berkeley >> >> 510-643-8566 >> ghand...@library.berkeley.edu >> http://www.lib.berkeley.edu/MRC >> >> "I have always preferred the reflection of life to life itself." >> --Francois Truffaut >> >> >> VIDEOLIB is intended to encourage the broad and lively discussion of >> issues relating to the selection, evaluation, acquisition,bibliographic >> control, preservation, and use of current and evolving video formats in >> libraries and related institutions. It is hoped that the list will serve >> as >> an effective working tool for video librarians, as well as a channel of >> communication between libraries,educational institutions, and video >> producers and distributors. >> > > > > -- > Pat Aufderheide, University Professor and Director > Center for Social Media, School of Communication > American University > 3201 New Mexico Av. NW, #330 > Washington, DC 20016-8080 > www.centerforsocialmedia.org > pauf...@american.edu > 202-643-5356 > > Order Reclaiming Fair Use: How to Put Balance Back in Copyright, with > Peter > Jaszi. University of Chicago Press, 2011. > <http://www.amazon.com/Reclaiming-Fair-Use-Balance-Copyright/dp/0226032280/r ef=sr_1_2?ie=UTF8 <http://www.amazon.com/Reclaiming-Fair-Use-Balance-Copyright/dp/0226032280/r ef=sr_1_2?ie=UTF8&qid=1321544105&sr=8-2> &qid=1321544105&sr=8-2> > > Sample *Reclaiming Fair Use! * > <http://centerforsocialmedia.org/reclaiming> > > Early comments on *Reclaiming Fair Use:* > > "The Supreme Court has told us that fair use is one of the "traditional > safeguards" of the First Amendment. As this book makes abundantly clear, > nobody has done better work making sure that safeguard is actually > effective than Aufderheide and Jaszi. The day we have a First Amendment > Hall of Fame, their names should be there engraved in stone. --Lewis > Hyde, > author, *Common as Air: Revolution, Art and Ownership* > > "*Reclaiming Fair Use* will be an important and widely read book that > scholars of copyright law will find a 'must have' for their bookshelves. > It > is a sound interpretation of the law and offers useful guidance to the > creative community that goes beyond what some of the most ideological > books > about copyright tend to say."-Pamela Samuelson, University of California, > Berkeley School of Law > > "If you only read one book about copyright this year, read *Reclaiming > Fair > Use. *It is the definitive history of the cataclysmic change in the > custom > and practice surrounding the fair use of materials by filmmakers and > other groups." --Michael Donaldson, Esq. Senior Partner, Donaldson & > Callif, Los Angeles. > VIDEOLIB is intended to encourage the broad and lively discussion of > issues relating to the selection, evaluation, acquisition,bibliographic > control, preservation, and use of current and evolving video formats in > libraries and related institutions. It is hoped that the list will serve > as an effective working tool for video librarians, as well as a channel of > communication between libraries,educational institutions, and video > producers and distributors. > Gary Handman Director Media Resources Center Moffitt Library UC Berkeley 510-643-8566 ghand...@library.berkeley.edu http://www.lib.berkeley.edu/MRC "I have always preferred the reflection of life to life itself." --Francois Truffaut -- Pat Aufderheide, University Professor and Director Center for Social Media, School of Communication American University 3201 New Mexico Av. NW, #330 Washington, DC 20016-8080 www.centerforsocialmedia.org pauf...@american.edu 202-643-5356 Order Reclaiming Fair Use: How to Put Balance Back in Copyright, with Peter Jaszi. University of Chicago Press, 2011. <http://www.amazon.com/Reclaiming-Fair-Use-Balance-Copyright/dp/0226032280/r ef=sr_1_2?ie=UTF8&qid=1321544105&sr=8-2> Sample <http://centerforsocialmedia.org/reclaiming> Reclaiming Fair Use! Early comments on Reclaiming Fair Use: "The Supreme Court has told us that fair use is one of the "traditional safeguards" of the First Amendment. As this book makes abundantly clear, nobody has done better work making sure that safeguard is actually effective than Aufderheide and Jaszi. The day we have a First Amendment Hall of Fame, their names should be there engraved in stone. --Lewis Hyde, author, Common as Air: Revolution, Art and Ownership "Reclaiming Fair Use will be an important and widely read book that scholars of copyright law will find a 'must have' for their bookshelves. It is a sound interpretation of the law and offers useful guidance to the creative community that goes beyond what some of the most ideological books about copyright tend to say."-Pamela Samuelson, University of California, Berkeley School of Law "If you only read one book about copyright this year, read Reclaiming Fair Use. It is the definitive history of the cataclysmic change in the custom and practice surrounding the fair use of materials by filmmakers and other groups." --Michael Donaldson, Esq. Senior Partner, Donaldson & Callif, Los Angeles.
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
