Thank you to all the correspondents! And we all really appreciate the good faith attempt to work from information. Here is Brandon's reply (and I'll post the FAQ as soon as possible):
Jonathan, et al., Thanks for that intervention. I look forward to working on an FAQ that can be a start at what Gary kindly calls for, light not heat. I certainly didn't mean to create straw men, and I think it is actually quite helpful to be clear that the discussion here is not about fair use simpliciter, but about fair use *as the Code articulates it.* So let me rephrase that: There is concern that if librarians exercise their fair use rights *as librarians have articulated them in the Code of Best Practices in Fair Use for Academic and Research Libraries,* their highly-valued relationships with film producers and distributors will be put in jeopardy. What I would like to address is the concern that the vision of fair use articulated in the librarians' Code is inconsistent with this relationship, because I do not think it is. It's clear that people on this list can and do debate the proper scope of the fair use rights of libraries, and I'm sure that's a fruitful and interesting discussion. My concern, however, is much more pedestrian. I want to be sure that people with an interest in libraries' use of video understand what the libraries' Code really says on that subject. Maybe once we are clear on that, you can debate whether the Code's vision is appropriate. I am afraid, based on the pieces of this discussion that Pat has shared with me, that some of the very important stakeholders on this list have misunderstood the libraries' position in fundamental ways, which makes it impossible to determine the stakes for video producers and distributors, much less whether the librarians got it right. I hope by sharing how the Code approaches the core questions in my earlier email, we could help facilitate a more useful discussion of the Code and its merits or demerits on this list and elsewhere. I tried in my earlier email to distill those core questions, with help from Pat, but I see that we need to be very clear that what we're talking about here is the contents of the Code. So, while I appreciate Gary's suggestion that everyone's views on these questions are welcome, I plan to craft answers grounded in the Code principles. If there is anything you would change or add, please let us know. Here are the questions, again, rephrased per Jonathan's intervention: *Does this Code really say that librarians can stream audio and video for student use, without licensing it for that specific use? *Does fair use law as the Code applies it really let a librarian copy a VHS to a DVD? *Does the Code's language on exhibits let a librarian show a video publicly without getting public performance rights? *Don't librarians have to pay educational prices to use films/videos in a library context? What does the Code say on this subject? *What authority is the Code of Best Practices in Fair Use for Academic and Research Libraries grounded in? *How risky would it be for a librarian to actually use this Code? Best, Brandon On Fri, Feb 17, 2012 at 12:08 PM, <ghand...@library.berkeley.edu> wrote: > Thanks, Pat. I think all of us on the list appreciate your efforts to > continue the dialog on these important issues and to listen to the > concerns being voiced about these guidelines. These concerns are based on > the experiences and knowledge of working media librarians, many of us in > the business for a great many years; I don't they're idle, naive, or > misinformed. > > Most of us have assiduously built strong relationships with content > providers over time--independent producers and distributors in particular. > We have a strong stake in the continuing commercial livelihood and > vitality of these concerns; we heavily rely upon them in our efforts to > build strong and diverse collections. Any best practice guidance > regarding fair use and copyright must take these long-standing, symbiotic > relationships into careful consideration, and absolutely must incorporate > the viewpoints of both access providers and those who have a creative and > financial stake in the production and distribution of the materials in > question. Best practices which are not linked to working realities are > really not productive at all. > > I think that the questions you've pose for an FAQ are among the most > pressing for those of us in the media trenches. I would hope that those > of us on this list--both librarians and film producers and > distributors--can be involved in developing the answers to them. > > Light rather than heat is definitely in order. > > Gary Handman > >> Thanks to everyone who's invested in this issue, and I continue to >> hope that we can benefit from education on this issue. I've shared >> your concerns with the lawyers who shaped the Code of Best Practices >> in Fair Use for Academic and Research Libraries with me and ARL's Prue >> Adler, on the basis of meeting with dozens of librarians and >> interviews with many more. The ARL's lawyer Brandon Butler, suggested >> what I think is a great idea and since he's not on the list, I'm >> posting it for him (he's bran...@arl.org): >> >> Brandon's message: >> >> We understand that there is concern both among librarians and vendors >> that a thriving relationship between them might be threatened if >> librarians exercise their fair use rights. We don't believe that is >> true, but we recognize that there is concern. >> We're hoping to deepen our resources, given the concerns on this list, >> and to prepare an FAQ that addresses your questions in a way that can >> add light not heat to the discussion. (We can also offer you a >> dedicated webinar, if you like.) Here are some questions we think >> could be addressed with such an FAQ, given the concerns on the list. >> Please tell us if these are not concerns, or if the questions could be >> sharpened. And can you let me know any others? >> *Does this Code really say that librarians can stream audio and video >> for student use, without licensing it for that specific use? >> *Does fair use law really let a librarian copy a VHS to a DVD? >> *Does the Code's language on exhibits let a librarian show a video >> publicly without getting public performance rights? >> *Don't librarians have to pay educational prices to use films/videos >> in a library context? >> *What authority is the Code of Best Practices in Fair Use for Academic >> and Research Libraries grounded in? >> *How risky would it be for a librarian to actually use this Code? >> >> On Thu, Feb 16, 2012 at 9:13 AM, Patricia Aufderheide >> <pauf...@american.edu> wrote: >>> I strongly encourage people to attend this or other webinars being >>> hosted >>> around the country by ARL on the Code ( >>> http://www.arl.org/pp/ppcopyright/codefairuse/code-calendar.shtml ). The >>> echo chamber effect on this listserv of panic is really not healthy for >>> anyone. The fear, panic and alarm can be alleviated tremendously by >>> actually >>> reading the code (among other places, at arl.org/fairuse), and if you >>> for >>> any reason believe that the Code does not meet the standards of the law, >>> I >>> encourage you to consult one of the briefings on the ARL's fair use >>> site, or >>> delve deeper into the legal and scholarly lit (we did) at this site: ( >>> http://www.arl.org/pp/ppcopyright/codefairuse/further-info.shtml). But >>> please do not scare yourselves into believing that the Code impairs the >>> relationship between creativity and connection. It's unnecessary and >>> harmful, to you among others. Librarians using the Code will continue to >>> need, want and even love and pay for the work of filmmakers producing >>> work >>> for their patrons, while they also judiciously and appropriately employ >>> their fair use rights (just as documentarians, journalists, scholars and >>> other creators of work that librarians preserve and make available do). >>> Do >>> take the opportunity to educate yourselves; it will go far to reduce >>> anxiety. >>> >>> On Mon, Feb 6, 2012 at 7:20 PM, Deg Farrelly <deg.farre...@asu.edu> >>> wrote: >>>> >>>> FYI >>>> >>>> Virtual seminar sponsored by NACUA, the National Association of College >>>> and University Attorneys in conjunction with The Association of >>>> Research >>>> Libraries and the American Council on Education. >>>> >>>> The date of the seminar is Thursday, February 23, 2012 >>>> >>>> The online portion of the program is scheduled to start at 10:00 am and >>>> will run until 12 noon. >>>> >>>> More info here: >>>> http://www.nacua.org/meetings/virtualseminars/february2012/home.html >>>> >>>> >>>> >>>> -deg >>>> >>>> >>>> >>>> -- >>>> deg farrelly >>>> Arizona State University >>>> P.O. Box 871006 >>>> Tempe, AZ 85287 >>>> Phone: 480.965.1403 >>>> Email: deg.farre...@asu.edu >>>> >>>> >>>> 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. >>> >>> 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. >>> >>> >>> >> >> >> >> -- >> 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. >> > > > 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.
