The Catholic University of America

Q and A

 

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Movies and Film Clips
 

Q. A student organization/film club wants to put on a film festival where they will screen some little known foreign language films as well as some older, well known American films. Scholars will introduce the films, and then after the film is over, lead a discussion of the film to critique, analyze, etc. They want to show the films mostly in university auditoriums, but also in one small theater off campus. There is no admission charge, and the films may be open to those outside the university community. Is there a chance this would be fair use?

A. A license is likely necessary. The legislative history of section 110(1) states: "There appears to be no need for a statutory definition of "face-to-face" teaching activities to clarify the scope of the provision. "Face-to-face teaching activities" under clause (1) embrace instructional performances and displays that are not "transmitted." The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place.

Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit. However, as long as the instructor and pupils are in the same building or general area, the exemption would extend to the use of devices for amplifying or reproducing sound and for projecting visual images. The "teaching activities" exempted by the clause encompass systematic instruction of a very wide variety of subjects, but they do not include performances or displays, whatever their cultural value or intellectual appeal, that are given for the recreation or entertainment of any part of their audience."

In particular, the last sentence has usually been helpful in thinking about free, worthy, cultural events because it is so tempting to want to think that such activities ought to be permitted... yet probably do need a public performance license.

 

Answer courtesy of Peggy Hoon, JD and UNC State University Special Assistant to the Provost for Copyright Administration

 
Q. Private University wishes to invite university and surrounding community to view family friendly film outdoors-free admission. Are there any legal requirements to obtain permission from the producer or
distributor?
 
A. Yes, the right to publicly perform (and your use meets the definition of "publicly perform) a work is a right of the copyright owner, 17 U.S.C. 106(4), and requires a license. You might start at the MPAA web page
Click on Public Performance Law. If the movie is in the public domain in the U.S., you don't need a license. Those rules are more complicated and differ depending on whether it's a foreign movie, or a U.S. movie published before 1964.) Answer courtesy of Gloria C. Phares, Patterson Belknap Webb & Tyler LLP
 
Q. I have two separate questions on copyright. I believe that if our faculty members wanted to use the image of a DVD cover in one of their on-line courses, they would have to obtain the consent of the copyright owner in order to do so. The question has come up whether in lieu of obtaining such permission, it would be permissible to link to a site which legitimately uses such DVD covers, i.e. a movie rental place. The other question is that, assuming the use of certain movie clips in an on-line course is fair use, could such movie clips be re-used as part of the same on-line course in the following semester and/or subsequent semesters?

A.The use of an image of a DVD cover in an online course is likely fair use. It would also be covered by the TEACH Act, assuming otherwise compliance with its provisions. Part of the analysis of this issue involves an estimate of the likelihood that one could actually *get* permission to use a CD cover for a course...

The same issue affects the analysis of the repeated use of clips from a movie. There is no established permissions mechanism to use clips from a movie. Thus, we have a broader scope of fair use therein. The "onesemester only" aspect of many guidelines relates mainly to articles and book chapters where there is ready access to permissions through such means as the Copyright Clearance Center. Also, as above, the use of clips, as many times as you wish (semester after semester) is permitted under the TEACH Act, assuming compliance otherwise.

Answer courtesy of Georgia Harper, University of Texas System, Office of General Counsel


Q. Two faculty members at our public university are interested in using 3-4 movie clips per online course to illustrate certain principles with scenes from these movies as a teaching tool. Their intent is to use clips ranging from 5-11 minutes each per movie. This will include (fairly recent) Hollywood movies as well as documentaries. This appears to fall into the fair use category, even though the time frame of 11 minutes appears to be a bit long.
A.The scenario you have described has great potential for fitting within 110(2) (TEACH) - but you need to meet a list of requirements. The major ones for this scenario would be whether this amount is a "reasonable" portion in light of the pedagogical aims of the instructor, streaming the clips to reasonably prevent downstream uses, and limiting access to the clips to students enrolled in the class. Fitting within this 110 exemption avoids the ambiguities of fair use although you may well have a reasonable fair use argument. TEACH resources can be found many places including the University of Texas Office of General Counsel page on intellectual property.  Answer courtesy of Peggy E. Hoon, Scholarly Communication Librarian,Special Assistant to the Provost for Copyright Administration,North Carolina State University Libraries

Follow up comment courtesy of Georgia Harper, University of Texas System, Office of General Counsel

"Yes, I agree with Peggy that it would fit beautifully within TEACH, but that list of requirements is fairly rigorous. I think it's fair use as well, however, given the facts you have provided."

Comment by webmaster: Schools often license use of movies for courses. Check with your librarian or copyright specialist. 


Q Our university is interested in showing a legal copy of three movies (which are on average about 20 years old) to a group of about 30 students in the library of one of our centers. Faculty will lecture before each movie and lead a discussion of the movie afterwards. Each movie will be shown on two separate days. My question is whether this type of showing requires a public performance license or whether this would still qualify as classroom use under Section 110(1).

A. It would qualify as classroom use and/or fair use. I think it fits very comfortably within 17 U.S.C. 110(1), but would also likely qualify as a fair use (17 U.S.C. 107) given the facts you have set forth below.

Answer courtesy of Georgia Harper, University of Texas System, Office of General Counsel

Copyright Guidelines For Showing Movies and Other Audiovisual Works, orignally by Steven McDonald, General Counsel, Rhode Island School of Design-this version by Washington and Lee adopted with permission of Steve McDonald

Music Licenses

NACUBO web page on use of music copyrights. Also links to a joint report by ACE and NACUBO on Use of Copyrighted Music on Campus.(September 2013)

 Q. Which of our performances at the Music School can we stream?

A. There are three major music licensing companies, BMI, ASCAP and SESAC, and the University has licenses to all three. Each blanket license has granted Catholic the non-exclusive right to publicly perform the works in each societies’ repertory by live or recorded means at Catholic’s premises or over its Internet site. BMI prohibits performances of music via broadcast “except performances via (i) Licensee’s web site(s), subject to limitations; (ii) Licensee’s Intranet transmissions; or (iii) Licensee’s Cable Television System, with respect to Locally Originated Programming Only.” The grant of license from ASCAP “shall include performances by means of Internet Transmissions, including webcasts of college owned and operated radio stations, Intranet transmissions and Licensee’s Cable Television System.” SESAC also grants the right “to publicly perform non-dramatic renditions of the musical compositions … by means of ‘Internet Transmissions,’ ‘Intranet Transmissions’ and from Licensee’s ‘Web Site(s).’”
With respect to the music performed live in a play, the issue would be whether the music is incidental to the dramatic performance, or alternatively, whether the music is an intrinsic part of the dramatic action. The latter, called "grand" performing rights (i.e., music which is intrinsic to the dramatic performance, such as the musical score for an opera) are not within the scope of the ASCAP, BMI or SESAC licenses; these organizations cover only non-dramatic music performing rights. Thus the School would need to go back to the licensor of the show and check with the entity that issued the license.

See 

Q. Faculty member has put together a video with sound track of popular songs. She would offer the video without charge and takes the position use of the songs in this regard is fair use?

A. The faculty member should  take a look at both synchronization and mechanical rights issues. 

BMI handles the former. For synchronization rights, see The Music Bed.

I would have a hard time saying that public distribution of a video containing whole popular songs can easily square with fair use, even though your faculty member isn’t charging for the DVDs. 

Answer courtesy of Madelyn Wessel, Associate General Counsel, University of Virginia (note editor updated agencies for synchronization rights based on a NACUANET 5/9/13 message.)

 

Q. College Music Department hires filmmaker to make documentary of summer music camp. Music Dept has all rights to the film. 1. Filmmaker films students performing, and interviews them without getting any releases/permission. Assume musical pieces are in public domain. In addition to privacy rights, do the students have copyright interests as well in their performances since the performances are now in tangible form? Or does copyright belong to filmmaker/music dept? 2. Filmmaker inserts 15 second clip from movie but substitutes music being played by faculty member. Does substitution of music change fair use analysis? 3. Students in interview are shown drinking brand-name soft drink. Use of trademark issue? Music Dept plans to: 1. Show film to promote music camp, and charge "suggested donation" which would go to scholarship fund. 2. Seek educational TV channel to show entire documentary. 3. Sell copies of the DVD.

A. You raise a fascinating question (at least to us copyright aficionados) about the student performers' copyright interests in their filmed musical performances. Under 17 U.S.C. sec. 1101 (the Anti-Bootlegging Statute), enacted in 1994 to comply with the GATT international trade agreement, "anyone who, without the consent of the performer or performers involved -- (1) fixes the sounds or images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation . . . shall be subject to the remedies provided in sections 502 through 505 [of the Copyright Act], to the same extent as an infringer of copyright." (What's more: under 18 U.S.C. sec. 2319A, the "knowing" fixation of such a performance without the performer's consent "for purposes of commercial advantage or private financial gain" is a federal criminal offense.) Under the Copyright Act's definitions (apparently adopted in the Anti-Bootlegging Statute), your filmmaker's film contains a "copy" of the students' performance. Although the drafters of the statute were thinking of star-studded concerts, not summer music camps, the statute still seems to be apply. By its terms, the Anti-Bootlegging Statute does not have any "fair use" exception and, even if did, it's far from clear that your film -- especially given that copies may be sold -- would constitute a "fair use." So I think a strong argument can be made that the students have, if not "copyright interests," at least "copyright-like interests" in their musical performance.

[The students technically don't have "copyright interests" because, to have such an interest, the work must be fixed in a tangible medium "by or under the authority of the author" (here, the performer, as "author" of his or her performance). 17 U.S.C. sec. 101. In the situation that you present, the filming was done without such authority.] Note that serious questions have been raised about the constitutionality of the Anti-Bootlegging Statute. Two federal District Courts have found it to be unconstitutional, and I believe that one of those cases is now pending on appeal in the Second Circuit. The Eleventh Circuit has held the statute to be constitutional.

Answer courtesy of Zick Rubin, The Law Office of Zick Rubin, Publishing / Copyright / Trademark

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Q. Our radio club which broadcasts internally on the school's intranet, now has requested to "stream audio over the internet". Besides possible limitations in licenses with ASCAP & BMI, what other legal ramifications does this trigger?

A. Assuming that copyrighted sound recordings will be broadcast over the internet, you will need a digital transmission license for the sound recording itself, separate and distinct from the BMI and ASCAP licenses. Information can be found at the following websites:

Copyright Office Rates and Terms for Webcasting for 2016 to 2020

Intercollegiate Broadcasting System page

In addition, the standard BMI, ASCAP and SESAC university licenses did not originally include webcasting (These licenses cover the right of the music owners, the above RIAA URL refers to license for the soundrecording itself, which rights are held by the owner of copyright to the sound recording, which is, of course, separate from the copyright to the underlying music), so you will need to check those licenses as well to be sure you have webcasting (digital audio transmission) rights.

Answer courtesy of Wes Blakeslee, Associate General Counsel, The Johns Hopkins University

Q. The Music Department of a university has created a CD of music selections performed by various student groups and faculty members. Some are classsical works in the public domain, but several are more modern, copyrighted works. The CD would not be sold or given to the general public, but would be given to prospective students as a sort of "see how good our students and faculty are" or what might be considered a "musical brochure." Does this use fit within the scope of the ASCAP/BMI licenses or within fair use?

 
A. ASCAP/BMI licenses are required only for "public performances," and distributing a CD isn't a public performance (although broadcasting it would be). However, you may still have a copyright problem, because when your student/faculty groups record a musical composition that is still in copyright, they are exercising the copyright rights to make and distribute a sound recording. But if a recording of a "nondramatic musical work" has already been distributed under the authority of the copyright owner, then the student/faculty groups are entitled to the compulsory license provided by sec. 115 of the Copyright Act to "make and distribute phonorecords" [which includes CDs], but only if they pay the statutory royalty rate or negotiate a royalty (which is usually cheaper than the statutory rate) with the copyright owner. The Harry Fox Agency negotiates those license for many music publishers, and you can go to its web site to see if they license the musical compositions in question. Your purpose for doing this is to promote the Music Department of your institution (presumably to show how it's better than the competition). This is not a use that qualifies as a fair use, even if done by a not-for-profit; others may have gotten away with this, but that's not an acceptable copyright defense.
Answer courtesy of Gloria C. Phares, Patterson, Belknap, Webb & Tyler LLP
 
Q. What is the difference between musical and dramatico-musical works?
 
A. The best answer to this question can be found in the case of Stigwood v. Sperber, 450 F.2d. (2nd. Cir. 1972). This case involved the rock opera Jesus Christ Superstar. The litigation involved The Original American Touring Company (OATC) "concerts" . Each OATC "concert" consisted of 20 of the 23 songs from Jesus Christ Superstar, sung sequentially with one exception, and three additional religious works. Ultimately, this production was found to be a dramatic presentation, for which permission had not been obtained from Stigwood, the holder of the dramatico-musical rights. Excerpts below from the case explain the difference between a dramatico-musical composition and the non-dramatic performing rights which in this case were licensed by ASCAP.
 
Timothy Rice wrote the libretto for Jesus Christ Superstar and Andrew Lloyd Webber composed the score of the opera's overture and 22 songs which depict the last seven days in the life of Christ. Rice and Webber assigned the rights in the work (except "King Herod's Song") to Leeds Music Limited which duly obtained United States copyrights for the opera as a "dramatico-musical composition" pursuant to 17 U.S.C. § 5(d) and for several of the individual songs as "musical compositions" pursuant to 17 U.S.C. § 5(e). Leeds Music Limited assigned the United States copyrights to Leeds Music Corporation. The Robert Stigwood Group Limited ("Stigwood") acquired the rights for stage productions and dramatic presentations of the opera, and its rights are those allegedly infringed. ****
 
In any event, ASCAP is authorized by its members to license only nondramatic performing rights of compositions in its repertory. Consequently, pursuant to the standard ASCAP agreement utilized here, ASCAP was authorized by Leeds to give:
1. (b) The non-exclusive right of public performance of the separate numbers, songs, fragments or arrangements, melodies or selections forming part or parts of musical plays and dramatico-musical compositions, the Owner reserving and excepting from this grant the right of performance of musical plays and dramatico-musical compositions in their entirety, or any part of such plays or dramatico-musical compositions on the legitimate stage.
Thus, while ASCAP licensees n2 can perform the individual songs from Jesus Christ Superstar, whether copyrighted individually or merely as part of the opera as a whole, paragraph 3 of the standard license indicates that it does not extend to presentations of:
(a) Oratorios, choral, operatic, or dramatico-musical works . . . in their entirety or songs or other excerpts from operas or musical plays accompanied either by word, pantomime, dance or visual representation of the work from which the music is taken; but fragments or instrumental selections from such works may be instrumentally rendered without words, dialogue, costume, accompanying dramatic action or scenic accessory and unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part. *****
 
There can be no question that the OATC concerts, in which singers enter and exit, maintain specific roles and occasionally make gestures, and in which the story line of the original play is preserved by the songs which are sung in almost perfect sequence using 78 of the 87 minutes of the original copyrighted score, is dramatic. And, the admitted desire of defendants to make reference to the opera in its advertisement provides further evidence that the performance is intended to come as close as possible to the original dramatico-musical. See M. Nimmer, Copyright § 34 (1971).
 
Q Are separate "internet" licenses required from SoundExchange, ASCAP, BMI, and SESAC, or is the SoundExchange license sufficient?
 

A (This answer was provided by, and with the permission of Lois Peel Eisenstein, University Attorney,University of Arizona)

Generally speaking, Sound Exchange represents those companies and individuals that own the music performing rights in the digital audio performance of sound recordings (e.g., record labels) This is a relatively new category of rights added to the Copyright Act in the late '90s; it does not include the performing rights to the underlying musical work (see next paragraph). SoundExchange offers different categories of licensees, depending on the nature of the organization seeking the license (e.g., a small, non-commercial broadcaster/webcaster will have a different license fee structure than a commercial broadcaster/webcaster). There has been controversy (and, I believe,threats of litigation) over the past couple of years with respect to the reasonableness of the SoundExchange rates, especially as they apply to small, non-commercial broadcasters.

ASCAP, BMI and SESAC are organizations that represent their member composers and music publishers in the licensing of non-dramatic music performing rights in musical compositions (as opposed to the performance of the recording itself - see preceding paragraph). Membership in these organizations is up to the individual composer and publisher with respect to each musical composition. Sometimes a single composition can be represented by more than one of these organizations (for example, the publisher and the composer may each be a member of a different music performing rights organization). So, you can't determine which is the applicable performing rights organization by reference to the artist who performs the work, or the type of music involved. Generally speaking, ASCAP and BMI represent the lion's share of music performed in the US; SESAC has a significantly smaller membership. Each of these organizations offers a "blanket license" that covers the non-dramatic music perfoming rights to all their respective composers' and publishers' works for unlmited use during the license term in defined media of exhibition, and for live performances. They also make available a "per program" license. Depending on the type of public performance involved, it may be possible to obtain performing rights directly from the composers and publishers of the works being used, since their membership agreements with ASCAP, BMI and SESAC are non-exclusive.

The ASCAP, BMI and SESAC licenses typically will cover the music performing rights for the live or recorded (other than digital audio performances - see SoundExchange) performance of copyrighted works in a concert on the university's premises or under the university's auspices (the language of each license will define the scope). With respect to the music performed live in a play, the issue would be whether the music is incidental to the dramatic performance, or alternatively, whether the music is an intrinsic part of the dramatic action. The latter, called "grand" performing rights (i.e., music which is intrinsic to the dramatic performance, such as the musical score for an opera) are not within the scope of the ASCAP, BMI or SESAC licenses; these organizations cover only non-dramatic music performing rights.

 

Note from Editor on Acronyms:

ASCAP - the American Society of Composers, Authors and Publishers, a nonprofit association - is the oldest and by most measures the largest of the performing rights organizations in the United States.

B.M.I. - Broadcast Music Inc., also a nonprofit and the longtime chief competitor to Ascap.

SESAC - Society of European Stage Authors and Composers, the smallest of the three and the only for-profit organization of the group.

 

 

 

 

Q. Questions on a Freelance Photographer Contract: Is it typically the photographer's obligation to obtain releases from recognizable subjects? Are rights in the work product typically transferred outright, jointly owned or granted on a limited basis? Are indemnities normally part of the negotiation?

A. It is typically the photographer's obligation to obtain a release at the time the photograph is taken from all individuals photographed (unless the photograph is something like a street scene that includes people whose presence could reasonably be described as incidental and none of whom is the focus of the photograph). The photographer obtains the right to use the image [the photographer usually tries to get the broadest uses possible; the subject, if sophisticated, may confine it to certain uses] and a release from all claims whether in contract, copyright, publicity, privacy, or libel.

I'm not sure what you mean about the rights (transfer/joint ownership/license). As between the subject and the photographer, the photographer owns all copyright rights (although the scope of use might be subject to a contractual limitation from the person being photographed). As between the university and the photographer, putting aside work for hire, the relationship is whatever is negotiated -- either an assignment or a license. (Photographers are loathe to assign rights (or even license them exclusively) unless well paid because they make their income from multiple non-exclusive licenses.) I don't see how ownership could be "joint" unless the photographer agrees to transfer part ownership in the copyright. (In the absence of contractual terms to the contrary, under U.S. law, joint copyright owners can each license non-exclusively but have an obligation to account to the joint owner.) A photographer's work *could* be work for hire (i.e., owned by your institution) only if (1) the photographer is your employee and took the photos within the scope of his employment, or (2) the photographer is an independent contractor *and* the work was commissioned as one of the 9 categories of works listed in 17 U.S.C. 101 ("work for hire" (2)) *and* you have a writing signed by both the photographer and your institution. Assuming an assignment or license, the photographer should give you (1) warranties that the work is original, he has owns or has obtained all rights necessary to reproduce and distribute it in the way in which you intend, his license (or assignment) does not conflict with any other contract, and the work does not violate any third-party copyright, trademark, or other proprietary right and the work does not defame or violate the right of publicity or privacy of any third party; and (2) indemnities against claims that if true would violate any of the foregoing warranties. Don't forget governing law.
Answer courtesy of Gloria C. Phares, Patterson, Belknap, Webb & Tyler LLP

 

Q Does the ASCAP/BMI license cover the situation where we are making a video and adding a sound recording by a popular artist to the video?

 

A. No. The ASCAP/BMI license only covers "small rights", which is the right to perform or cause the public performance by live or recorded means at the licensee's premises. When you add the music to a video, a synchronization license is necessary. The synchronization rights grant the user a license to synchronize music to a moving image. In order to obtain this license, permission from both the music publisher of the song and permission from the record label must be sought. See the ASCAP web page on customer licenses for further explanation of what the blanket ASCAP license offers, and explanation of other terms, such as "grand rights", mechanical rights, and more. There are agencies that can be used to help procure these rights. In order to ascertain the fee that will be charged, those seeking synchronization rights need to know the answers to the following questions:
1. # of events at which video will be shown
2. # of copies of video being made
3. # of viewers
4. term of license
5. territory in which video will be shown
6. scene description (e.g will this be shown on campus at an open house?)
7. timing of music usage
8. timing of entire video
 

Q: My office has had some students working on a "Thank You Tube" video, basically a bunch of clips of students, faculty, and staff at the university saying "thank you". Our plan is to send it to alumni who make annual fund donations. The students chose some random background music. I''m wondering if we'll have any problem using the background music they chose. If so, what do we need to do in order to get rights to use it?

 A: What you would need are *synchronization rights* if this is copyrighted music. These are almost impossible to obtain. The easier alternative is go to a web site that has already licensed or easy to license music for such a use.  Check the Creative Commons for music which can be used in the manner you have in mind without paying anything. 

  

Q: What happens when a copyrighted item, for example a set of standards developed and copyrighted by a private entity, gets adopted into law by a public jurisdiction? Is the material then in the public domain?

 A: See Peter Veeck v. Southern Building Code Congress International, 293 F.3d 791 (5th Cir. 2002). The Court, sitting en banc noted in summary as follows: The issue in this en banc case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law". Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law , the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status.

Q: Where can I get some useful information defining what constitutes plagiarism?

 A: See the Indiana University website titled How to Recognize Plagiarism: Tutorials and Tests. This website has been enthusiastically recommended by some of the legal writing faculty at Catholic University's School of Law. 
 
Q. A student at the university wrote a thesis under the supervision of a professor. The original project was the professor's idea and they jointly developed the instruments. The student ran all the subjects, performed the analysis and produced the write up, which became his thesis. Who owns the intellectual property produced?
 
A. Since the student collected the data, did the analysis, and wrote the thesis, the intellectual property belongs to the student, and the student is free to create derivative works from his thesis.
 
Q Where can I find out about registering a software program with the Office of Copyright? Specifically, where the program was developed by graduate students at our university, do I need some formal agreement to reflect the transfer of ownership of the program from the students to the university?

 

A (This answer was provided by, and with the permission of Georgia Harper, from the University of Texas.) The "formal written agreement" to which you refer below is an assignment, and, yes you need one, and we have one available online. As for other advice, be sure to read Circular 61 on registering software copyrights. It is online too at the copyright office's website, see specifically Circular 61.

 

ART

Q We are a public university and our Marketing department has approached us regarding the use of a Marc Chagall image - the image is "Le Couple." The intended use is for the cover design for the playbills for our Theatre Department. They plan to print abut 4,500 of these covers with said image. Our Marketing department has been unsuccessful in trying to locate the owner of said image. Does anyone have any recommendations with respect to a clearinghouse that could grant permission to use an artwork image such as this one? Your feedback would be appreciated.

A. Chagall's estate is represented outside the US by ADAGP, a French organization representing the rights of authors in the visual arts:  In the US, the Artists Rights Society clears Chagall rights.  Answer posted courtesy of Ann H. Appelbaum, Counsel, The Jewish Theological Seminary of America.

Q. What is the latest on migrating artworks from old technology to new before the old technology becomes obsolete, i.e., VHS to digital. Is this an alteration of the artwork requiring permission of the artist or can it be done as matter of professional care?

A. There has been a great deal of work done on this issue, particularly with respect to the seeming focus of your question--the transition of obsolete VHS to digital (DVD) format.

Mellon funded a wonderful project that resulted in a detailed and thoughtful report on this very topic.  The NYU project delved deeply into Section 108 of the Copyright Act's twists and turns relating to digital preservation.

There are also strong Section 107 Fair Use rights to be considered in rescuing deteriorating film and video collections at libraries and other archives. My personal opinion is that not-for-profit educational institutions, museums, and archives can reasonably assert a fair use right to digitally preserve any media in a deteriorating format such as VHS to advance cultural and arts preservation. I think most copyright lawyers not representing content industries would (more or less, she said, hopefully) tend to concur. The issue of what can be done with such works (beyond archival preservation); however, is where opinions definitely tend to diverge.

For me, use issues must be handled (as Fair Use doctrine/case law constantly reiterates) on a factually specific, individually considered basis. (The NYU Report goes into great detail about the Section 108 responsibilities here as well.) Would I endorse a library digitally preserving every VHS tape in its collection and making resultant DVDs randomly available in the library's circulating collections. Answer: No! If the copyright holder has also updated the format of any given film work and made a DVD available for a reasonable price, then the library should be buying the work in that new format and using that replacement DVD. But if the library finds that a DVD version of the obsolete format is not reasonably available, would I support the use of the replacement copy in teaching and learning. Answer: Yes! Further, would humanities research activities using the digitized film cache be supportable as a fair use by faculty at the institution, e.g. content data mining for transformative research activities? Answer: Yes! Additionally, if a given digitized film or films were needed to provide accommodations for a disabled student or faculty member could use of the new format be reasonable. Answer: Yes! (Thank you Jack Bernard and Hathitrust!).

Answer courtesy of Madelyn F. Wessel, University Counsel, Virginia Commonwealth University

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 updated 6-16-16