Representative from CSM and ALA have often stressed that the use of items in instruction is not always Fair Use or 110, but could be both. I was hoping this code would provide more guidance in defining when Fair Use is in play in pedagogy.
I feel that the Fair Use of feature films in instruction is FARILY clear cut. In my experience, outside of Film Studies, most faculty use fairly short portions of features films in a way that seems clearly transformative or illustrative. We've all seen examples of this at our universities. A Sociology of the Family course uses a scene from Big Love to illustrate nontraditional family structures. A clip from Triumph of the Will is compared with a clip from Star Wars of Darth Vader commanding imperial forces. Etc, etc , etc. This is not as straightforward when you start talking about the use of documentaries in online education, especially those with intrinsic instructional value. When a faculty member contacts me and wants to put an educational documentary online, 90% of the time they want the entire film up. In my gut, I feel that this is almost always something better covered by 110(2) and/or licensed for use, but this Fair Use code is so vague in this regard that I don't feel like I can "provide instructors with useful information about the nature and the scope of fair use" based on the information outlined here. Additionally, Michael Brewer just brought up the idea that 110(b) is essentially a way to take a physical classroom space and translate it into the online environment (within those limitations set by 110b). When I first began working with faculty who were moving their courses online it was fairly simple to distinguish between a core resource and an ancillary one (usually items previously assigned to Reserves or considered optional). However, faculty are now regularly creating online courses from scratch and are no longer tied to the concept that the core instructional materials is what can be cover in a 50 minute time span. This is not a bad thing but it makes applying 110(b) more and more difficult. Kim Stanton Head, Media Library University of North Texas kim.stan...@unt.edu P: (940) 565-4832 F: (940) 369-7396 -----Original Message----- From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner Sent: Monday, February 06, 2012 11:38 AM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] ACRL Best Practices First of all 110 is blessedly specific and requires that the showing be in a CLASSROOM or similar place of instruction and that the instructor be PRESENT and I assure legally this is not even a close call and I don't even get the impression that the "best practices" tried for that one. Under no circumstances can 110 be used to claim the right to stream films at will to a student say in a dorm, off campus housing or the local Starbucks. If you can not understand how just streaming any film a professor says they need for a course to students wherever they are effects the market for a distributor it is hard for me to explain ( though I see as was typing it Dennis tried) On Mon, Feb 6, 2012 at 11:50 AM, Brewer, Michael <brew...@u.library.arizona.edu> wrote: > Whether streaming an entire film for a class for the same purposes (and > amount) as 110 is legally fair or not, I don't see how the effect on the > copyright holder would be any different than if the title were used under > 110, especially if the "limitations" put forward by these best practices are > considered and abided by (I don't have the document in front of me, but I > think it addresses those situations where the content was created for the > educational market in streaming format, or if the content can easily be > purchased/licensed in streaming form - FMG, Alexander Street Press, etc.). > > Can someone describe for me how the effect on the copyright holder would be > different for a work streamed to a course than it is for a work performed in > a classroom, i.e. 110 (assuming the limitations listed above are not in > effect)? It seems the only difference is a greater opportunity for > instructional efficiency, expanded access, and, potentially improved student > learning. > > mb > > Michael Brewer > University of Arizona Libraries > brew...@u.library.arizona.edu > > > -----Original Message----- > From: videolib-boun...@lists.berkeley.edu > [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner > Sent: Monday, February 06, 2012 8:36 AM > To: pauf...@american.edu; videolib@lists.berkeley.edu > Subject: Re: [Videolib] ACRL Best Practices > > Pat, > If you and the people who developed these "best practices guidelines" > are sincere that you are not the enemy of content owners, how bout a simple > and CLEAR statement that "fair use' does NOT cover the use of feature > material being assigned to classes. I mean it is cute to come up with a > scenario about "tagging" a film, but we all know what it is going on. More > and more universities are simply allowing entire films to be streamed for > classes because professors and students find it easier and the institutions > find it cheaper. Heck buy one copy and just stream it to the entire class. > Your document is filled with vague references to "fair use" and educating > professors on it, but for those of us in the content business it is nothing > but a cover for stealing our stuff. Don't get me wrong I believe strongly in > real fair use and I know many content owners big and small have often not > accepted legitimate uses, but as universities increasingly steal our work ( > sorry but this IS the correct word) I believe it has become " I think it is > fair and I am going to use it". The use of the terms "fair use" and > "transformative" are thrown out like candy with absolutely no restrictions > beyond asking an instructor to say why they need to use it. > > > Again a simple statement from the ACRL group that these guidelines are NOT > meant to claim "fair use' covers entire films being assigned for regular > viewing (not clips, mash ups, tags etc) would be a huge step towards working > with the content community, but I am not holding my breath. > > Also I will ask again for you two answer two questions I have asked before > but never received an answer to. > > 1. What is the difference in copyright between a book and a film? If a > professor can show the need for an entire film in a course, why can't an > instructor show the need for an entire book and have it scanned and posted > online. > > 2. The UCLA case is at present dismissed on the basis of Sovereign Immunity, > standing and oddly PPR rights sold with the title in question, but as a > matter of your view and others with the "best practices" was it legal for > UCLA to digitize, stream and use thousands of full length feature films? > > On Mon, Feb 6, 2012 at 9:35 AM, Patricia Aufderheide <pauf...@american.edu> > wrote: >> 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/022 >>> > 6032280/ref=sr_1_2?ie=UTF8&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. >> >> Sample 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. >> > > > > -- > Jessica Rosner > Media Consultant > 224-545-3897 (cell) > 212-627-1785 (land line) > jessicapros...@gmail.com > > 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. > > 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. -- Jessica Rosner Media Consultant 224-545-3897 (cell) 212-627-1785 (land line) jessicapros...@gmail.com 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. 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.
