I was reading your analysis and feeling very confused until I remembered that this is a list for VIDEO.
For academic books (which the Georgia State case addresses), your comment is just not true: "So doesn't it stand to reason that when considering fair use for a work sold primarily to the education market, the economic impact should be weighted more? That is what made the work available in the first place." What makes academic books available is not the system of publishers and presses, but rather the fact that writing such books is (a) subsidized by universities and grants made to the writers, and (b) rewarded when the writers get promotion for having published. So in fact the license to allow students to read the work in question is the THIRD time the academic system has paid for it. Professors almost never see any money from academic books of the kind in question (unless it is actually a textbook which students can be asked to buy). The publishing institutions make money, yes, but the work of creating and often of editing is done for them for free by people who are supported by their academic institutions because they do this kind of work. (My husband has just finished editing, typesetting, indexing, and proofreading a book he wrote, which will be published by a press whose sole contribution will be to tell him how to format it and to advertise it, primarily by supplying copies to reviewers who will write up discussions of it without of course being paid. And of course the press will sell copies of it, and keep any profit. My husband did however get a "merit" raise this year.) I think the question may be whether the publishing industry is needed as a means of routing academic work from academe to academe; since it depends for its fodder 100% on the personnel of academic institutions, it needs to be circumspect in challenging the need of the institutions to use its products. I gather that the situation is different for educational video, where the filmmakers apparently actually get some royalties from their products, and may be working independently of the academy. Judy Shoaf From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Bob Norris Sent: Tuesday, October 21, 2014 9:45 AM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] another summary of Georgia State appeal Thanks Jo Anne. Ms Sims summary is really quite thorough and interesting how it is organized, especially in light of the fact it was written on a Friday night for a blog. There is one short statement that stood out from my standpoint as a producer and distributor of material primarily, and often exclusively, sold to education. It is an opinion that worries me more and more as the technology becomes common place that allows for the easy and inexpensive dissemination of educational material not just to the traditional four walled classroom but to the proverbial global classroom. As curators of programs from many distributors similar to Film Ideas I'm wondering how you videolibbers feel about the following. (I've bolded statements from the court's opinion to try and make these excerpts of Nancy's opinion, mine and the courts clearer.) Nancy states: "The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. But this opinion affirms again that "[p]romoting the creation and dissemination of ideas has been the goal"" This ignores the statement in the court's opinion that: As the Supreme Court has explained, "the economic philosophy behind the clause empowering Congress to grant copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare [by promoting the creation and dissemination of ideas] through the talents of authors. . . ." So remuneration is not secondary, it is integral. The opinion goes on to state that you cannot treat the 4 factors of fair use with equal weighting. You have to consider a case by case basis. So doesn't is stand to reason that when considering fair use for a work sold primarily to the education market, the economic impact should be weighted more? That is what made the work available in the first place. Perhaps more importantly the opinion states: Nevertheless, "it is sensible that a particular unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use. The vice of circular reasoning arises only if the availability of payment is conclusive against fair use." Id.at 931. Put simply, absent evidence to the contrary, if a copyright holder has not made a license available to use a particular workin a particular manner, the inference is that the author or publisher did not think that there would be enough such use to bother making a license available. In such a case, there is little damage to the publisher's market when someone makes use of the work in that way without obtaining a license, and hence the fourth factor should generally weigh in favor of fair use. So it must be 'lesser' fair when the primary market, not just a ready market, is education. And least fair when the copyright holder sells licenses to the program to the education market, which license includes the segments already broken out. Let's be honest. Professors no longer want to show the whole program to a class. They want the nuggets. And if they can get the nuggets for free and don't buy the program the producer loses economically. As streaming of short segments becomes the norm, I don't see how you cannot say there is material effect of the use upon the potential market for or value of the copyrighted work. In court speak- hence the fourth factor should generally NOT weigh in favor of fair use under these cicumstances. Do I have blinders on because I'm focused on making money? What say you who are paid to promote the creation and dissemination of ideas? Sincerely, Bob On Oct 20, 2014, at 2:59 PM, videolib-requ...@lists.berkeley.edu<mailto:videolib-requ...@lists.berkeley.edu> wrote: From: Jo Ann Reynolds <jo_ann.reyno...@lib.uconn.edu<mailto:jo_ann.reyno...@lib.uconn.edu>> Date: October 20, 2014 10:11:41 AM CDT To: "videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu>" <videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu>> Subject: [Videolib] another summary of Georgia State appeal Reply-To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> This from Nancy Sims, the Copyright Program Library at the University of Minnesota Libraries http://blog.lib.umn.edu/copyrightlibn/2014/10/11th-circuit-gsu-ruling.html Interesting case but unless you are in Georgia, Alabama, or Florida don't panic yet as the decision is binding only in the 11 Circuit. Best, Jo Ann Jo Ann Reynolds Reserve Services Coordinator University of Connecticut Homer Babbidge Library 369 Fairfield Road, Unit 1005RR Storrs, CT 06269-1005 860-486-1406 voice 860-486-0584 fax From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Bob Norris Sent: Monday, October 20, 2014 9:01 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Georgia State appeal decision is out Is there a paragraph summary of the 129 pages somewhere? Bob
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.
